Lembke Municipal Drain (Re), 1997 ONAFRAAT 54

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone 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:

Lembke Municipal Drain Township of Sullivan

Lembke Municipal Drain (RE) 1997 ONAFRAAT 54

STATUTE:

Drainage Act

HEARING:

December 2, 1997

DATE OF DECISION:

December 15, 1997

1997-54

NEUTRAL CITATION:

1997 ONAFRAAT 54

Lembke Municipal Drain Township of Sullivan

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 Ursula Karalus and Keith and Jean Klages under Section 54 of the Drainage Act from the decision of the Court of Revision and under Section 48 of the Drainage Act by Keith and Jean Klages on the grounds that the compensation or allowance provided by the engineer are inadequate or excessive with respect to the Lembke Municipal Drain in the Township of Sullivan

Before:

Vernon Spencer, Chair; Andrew Osyany, Vice-Chair; Russell Piper, Member.

Appearances:

Ursula Karalus, appellant

Keith Klages, appellant

David Grahlman, P. Eng., for the respondent the Township of Sullivan.

DECISION OF THE TRIBUNAL

This appeal was heard in the council chambers for the Township of Sullivan (the Township) at Desboro, Ontario, on Tuesday, December 2, 1997. Ursula Karalus and Keith and Jean Klages appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 54 of the Drainage Act from the decision of the Court of Revision and Keith and Jean Klages also appealed to the Tribunal, under Section 48 of the Drainage Act on the grounds that the compensation or allowances provided by the engineer are inadequate or excessive with respect to the Lembke Municipal Drain in the Township of Sullivan.

Mr. Will Moore, Clerk-Treasurer of the Township, performed the duties of the Clerk of 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. 1990, chap. D.17, 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. 1990, chap. D.17, s. 54.

The Background

The Lembke Drain is located in Concession 9 and 10, Township of Sullivan. Land use is almost totally agricultural with two small residential lots. There is a significant amount of bush and swamp. The topography adjacent to the drain is flat and slopes north-westerly. The watershed rises significantly near the watershed boundaries. Soils are described as Parkhill and Chesley Loam with poor natural drainage. The agricultural land use is mixed farming with typical crops such as corn, barley, soy beans and forage. There are significant areas of pasture. The total drainage area is about 1,900 acres. The total estimated cost is $153,273.00.

Drainage in the watershed is presently provided by a system of man made watercourses which are insufficient in depth and are out of repair. There is some under drainage in the watershed. The proposed work consists of improving two existing watercourses and paralleling two existing tile drains. The work consists of improving an open ditch Main Drain which extends southerly from Sideroad 15-16 in Lot 16, Concession 10, turns east on Lot 17, crosses County Road No. 3 and ends on Lot 17, Concession 9. The length is 2,909 meters with a total fall of 7.7 meters. The bottom width is 1.0 meter with side slopes of 2 horizontal to 1 vertical. Culverts or an allowance for severance are given as required. There are two cattle watering holes that also serve as silt traps for the drain.

There are three branch drains which outlet into the Main Drain.

“A” Drain is an open ditch on Lots 16 and 17, Concession 10, 406 meters long and provides outlet for the petitioners, Keith and Sherry Elder. The estimated cost of A Drain is $11,393.00.

“B" Drain is wholly on Lot 17, Concession 9 and is a 760 mm diameter concrete field tile intended to greatly reduce damaging surface flows. The length is 114 meters. The estimated cost of B Drain is $18,366.00.

“C” Drain is wholly on Lot 17, Concession 9 and provides outlet for the petitioners, Daniel and Marian Hachey, while also reducing surface flow onto Lot 17. It is a 250 mm diameter plastic drain tube, 320 meters long. The estimated cost of C Drain is $11,175.00.

The Court of Revision decided to modify the assessment as proposed by the engineer, by reducing the assessment against the lands of the appellant Klages by the sum of $50.00 and against the appellant Karalus by the sum of $60.00 and adding the sum of $110.00 to the assessment against the lands of Steven and Karen Lembke.

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 by the engineer appropriate?

The Evidence

Ursula Karalus, owner of the W¼ Lot 18, Concession 10, told the Tribunal that the assessment against her land for the Main Drain and A Drain were excessive. She owns a parcel of 50 acres of land. The property is divided into fields 8 acres in size resulting in her property being 2 fields wide and 3 fields deep with 2 acres for the farmstead. With respect to the portion within the watershed, she indicated that, in her opinion, the water from her land divided at about the mid point of the lot, with half flowing north east through A Drain and the other half to the north west through the Cullen property to a deep ditch on the Curry property and then into the proposed Lembke Main Drain, at about the mid point of Lot 16, Concession 10. She said that part of her property has been reforested as it was rough and stony when she purchased the land.

Ms. Karalus said that in the worst case she should only be assessed for 13 acres into A Drain, and she should not be assessed for the rest of the property as the water from the property does not get to the drain but is used either by the vegetation or infiltrates into the ground before it gets to the Lembke Main Drain. She said that the volume of water draining from her land will not change after the work is done.

Mr. Keith Klages told the Tribunal that he understood that outlet assessment is based on volume and rate of flow of water. Since this is the basis of assessment he argued that his property should not be assessed at all. He said that there is no volume or rate of flow of water from his property into the drains. He told the Tribunal that at the back of the farm there is a pond that collects the water after the spring runoff. Once spring runoff is over the pond is never full during the growing season nor is it ever dry. He said that about 14 acres of land at the back of the farm flows to the pond and does not run onto the Lembke property. There is also a ridge on the west side of the property that causes water to collect on the farm and sit there.

Mr. Klages also argued that B Drain is a cement culvert and an open ditch would do the job at much less cost. He said that B Drain is 108 meters long and the upstream properties assessed for outlet pay $3,730.00 for that drain while Mr. Lembke pays only $13 for outlet on this drain.

Mr. Klages said that his assessment for outlet should be comparable with the Bluhm property which is assessed at $7.62 per acre and the 14 acres that drain to the pond should not be assessed at all as it does not contribute to the flow of water in the drain.

Mr. Klages told the Tribunal that the allowance for severance provided to the McNabb property is excessive. He said that he felt $3,500.00 was a more realistic allowance for this crossing than the $4,500.00 provided. He pointed out that only 7 acres was severed and the land was used as pasture, therefore it was not necessary to have access to this land. The cattle would cross the ditch.

Harold Bluhm told the Tribunal that no water from his land drains into the ditch. He said his land slopes to the north to the sideroad then along the roadside ditch to the creek. He said there is a small ditch that runs from his property into the Lembke Main Drain in the Cullen property, but the land is flat and there is very little flow in this ditch.

In response to the appeals Mr. Grahlman, the engineer who prepared the July 7, 1997 report for the Lembke Municipal Drain, described his method of calculating the assessments as follows:

“Benefit assessment is calculated as a percentage of the cost of the work on the property or by judgment if it only touches a property.

Costs on a property include everything that goes into building the drain, such as:

1. Cost of Construction including: clearing, excavation, spreading and leveling, grass seed, rip rap, culvert, if any;

2. Allowances including, ditch already constructed, land taken, damages from the work, severance allowance, if any;

3. Overhead and Contingency - 25%.

The total cost for a property is tallied and a percentage assigned for benefit. In this case 60% for most properties.

The amount not assessed as benefit is assessed as outlet.

Assessments for the Main Drain are about two thirds benefit and one third outlet. For “A” and “B” Drains outlet assessments are much less than one third of the total.

The assessments proposed in the report for the Main, “A” and “B” Drains break down as follows:

Main: Benefit $ 73,088.00

Outlet $ 39,127.00

“A”: Benefit $ 9,229.00

Outlet $ 2,164.00

“B”: Benefit $ 14,747.00

Outlet $ 3,743.00

To calculate outlet assessment a relative runoff coefficient is assigned to each property considering land use. The runoff coefficients used were: Agricultural Land 1.0, Bush or Swamp Land 0.8, Residential Lots, 2.0, Roads 2.0.

Each property is assigned a percentage of drain used from 10 to 100% considering the location where the runoff from the property enters the drain.

The product of Acres (A) x Runoff Coefficient (C) x Percentage Used (L) is calculated and then summed for all properties.

Individual assessments on each drain are then calculated as:

[Property A x C x L / Sum of All A x C x L ] x total outlet amount for that drain.”

After outlining the principles he used, Mr. Grahlman provided the Tribunal with detailed calculations of the assessment of the appellants as follows:

Keith and Jean Klages

The Klages property is assessed for outlet into the Main Drain and “B” Drain.

As shown on the plan, part of the Klages property outlets directly into the Main Drain and part outlets to “B” Drain which conveys it to the Main Drain. The report lists 40 acres as draining to “B” Drain and the entire property, 50 acres, as draining to the Main Drain (40 via “B” + 10 directly).

To calculate the Klages’ outlet assessment, a runoff coefficient of 1.0 was assigned. A factor for amount of drain used as 0.84 was assigned because the engineer judged the Klages property to use 84% of the drain. This is based solely on the location of the Klages property.

The dollar amount of the Klages property is calculated from the product of Area x Runoff Coefficient x Percentage of Drain used, divided by the sum of all such products for all properties x the total cost to be charged as outlet assessment.

Specifically, the Klages’ assessment for the Main Drain as calculated by the engineer is:

[50.0 (A) x 1.0 (C) x 0.84 (L)/976.24] x $39,127.00 = $1,683.00

and for “B” Drain is:

[40.0 (A) x 1.0 (C) x 1.0 (L)/419.3] x $3,473.00 = $357.00

Mr. Grahlman pointed out that Mr. Klages compared his land to that of Harold Bluhm, the E½ of Lot 16, Concession 10, which is assessed for outlet at the rate of about $8.00 per acre. Mr. Grahlman told the Tribunal he agreed with this comparision except for the location of the properties on the drain. The Bluhm property is near the outlet of the drain and uses a very short length of the Lembke drain while the Klages property uses the majority of the length of the drain. Therefore, the Klages property should be assessed for outlet at a higher rate than the Bluhm property.

In response to the argument that B Drain was much more expensive because it is a tile drain rather than an open ditch, Mr. Grahlman told the Tribunal that he had estimated the cost of constructing an open drain and had assessed that estimated cost at 50% benefit to Mr. Lembke and 50% outlet to the upper watershed. This is the figure he used for the outlet assessment for B Drain. The entire increase in cost of B Drain to install the tile drain rather than the estimated open ditch was assessed to Mr. Lembke as a benefit assessment. Mr. Grahlman argued that the outlet assessment for the upper watershed would be the same regardless of the type of construction on B Drain.

Mr. Grahlman argued that the pond on the Klages property does not dry and therefore has limited storage available to retain stormwater. He said that when designing the drain, he must provide capacity for the runoff that would occur from this land when the pond is full, and therefore, he did not provide any reduction in assessment for the existence of the pond. Mr. Grahlman noted that the Klages assessment for outlet was comparable to the assessment on the Zook and Funck properties which are similarily situated on the drain.

In response to the Klages appeal on the amount of allowances, Mr. Grahlman said that he had allowed what it would have cost the drain to install a crossing on the McNabb property as an allowance for severance, that is the construction cost plus an amount for overhead. He noted that 7 acres had been severed and the owner had a right of access to this land. He also said that in making the allowances he had to consider the future use of the land as well as the present use. The allowance is assessed 60% as benefit to the McNabb property and 40% as outlet.

Ursula Karalus

Ms. Karalus objects to the number of acres she is assessed for the Main and “A” Drains and objects to the total amount of her assessment. The Karalus property is bounded on the south by the watershed of the Snake Creek Municipal Drain Extension established in 1980, pursuant to the report of W.J. Bartlett, P.Eng. This report lists a watershed for the Karalus property of 15 acres. The balance of 35 acres Mr. Grahlman assessed to the Lembke Municipal Drain.

Upon reviewing the property Mr. Grahlman reconsidered the number of acres involved and set the acreage at 32 acres. To avoid a situation in the future where the Snake Creek Drain showed 15 acres and the Lembke Drain showed 32 acres leaving 3 acres unaccounted for, Mr. Grahlman listed in the report 35 acres affected but used 32 acres in making his calculations for assessment purposes.

Mr. Grahlman told the Tribunal that part of the property drains northerly to a private ditch tributary to the Main Drain and part drains northerly to “A” Drain. He set the acreage as 29 into Drain A and 3 into the private ditch and thence to the main drain.

The outlet assessment for the Karalus property for the Main Drain was calculated using a runoff coefficient of 1.0 multiplied by 32/35 to make it act as 32 acres times the percentage of drain used, 28%, divided by the sum of all such calculations, times the amount assigned to benefit.

{35(A) x 32/35}x 1.0 (C) x 0.28 (L)/976.24 x $39,127.00 = $358.00.

For “A” Drain, the calculation is

29.0 (A) x 1.0 (C) x 1.0 (L)/93.05 x $2,164.00 = $618.00

Mr. Grahlman told the Tribunal that, in his opinion, he had calculated the assessment on a consistent basis treating each property in a similar fashion and he did not feel any adjustment to the assessment was necessary. He said he had visited the properties and viewed the watershed and in his opinion the acreages he listed are correct.

The Findings

The Tribunal wishes to compliment the engineer on the report which covered allowances and the various aspects of the drain clearly and in sufficient detail. The engineer’s presentation to the Tribunal at the hearing was also excellent, and it filled out the parts of the report on the assessment methodology employed.

Ms. Karalus owns a 50 acre parcel of land of which about 32 acres flows into the Lembke Drain either through A Drain or through the private drain on the Cullen property into the Main Drain. The engineer set the acreage at 3 to the private drain and 29 to A Drain. Ms. Karalus did not appear to understand that the engineer’s report showed this and she said she felt that 13 acres flowed through A Drain and the rest of the property did not contribute any flow at all. It is difficult for the Tribunal to envision a situation where this property, that by Ms. Karalus’ own evidence has somewhere between 50 and 100 feet of fall to the drain, does not contribute water to the drain. The Tribunal is convinced by the evidence of Ms. Karalus that water does flow from the Karalus property into the Lembke Drain and the Tribunal prefers the evidence of Mr. Grahlman on the acreage draining through the private drain and A Drain.

Ms. Karalus told the Tribunal that she thought her land should be assessed at $8 per acre for outlet instead of the $10 per acre that the engineer had calculated. This would amount to a reduction in outlet assessment of $64.00. The Court of Revision fulfilled its duties in an appropriate manner and had reduced her assessment by $60.00. The Tribunal finds the only rationale for the Court of Revision reaching this decision was to try to appease Ms. Karalus and thus avoid the cost of this hearing.

Similarly, with Mr. Klages, his land slopes to the north west and by his own admission contributes water to the Lembke Drain during spring runoff. He said there is a ridge 30 feet high on the property. There is no evidence that runoff water will not follow the same path during storm events that it follows during spring runoff. The Court of Revision reduced the assessment against Mr. Klages by $50.00. The Tribunal finds the only rationale for this decision was to try to appease Mr. Klages and avoid the cost of this hearing.

In the opinion of the Tribunal, the appellants came to this appeal misinformed on the operation of the Act and the generally accepted principles for calculating assessments and the past practices of the Tribunal. Rather than seek independent advice to inform themselves, the appellants chose to pursue their appeals which is their right under the Act. Exercising this right increases the cost of the project because the municipality and its engineer has to respond to the appeals. The Tribunal notes that the total assessed against these appellants for this project is $3,072.00 out of a total of $153,273.00. The cost of the hearing exceeds the total cost of the appellants' assessment.

The Tribunal is faced with the dilemma of how to deal with the cost of the appeal. In the opinion of the Tribunal, the landowners on the drain should not be required to carry the total cost of this hearing, when the engineer had made every effort to inform everyone of how the assessments were calculated and the Court of Revision had obtained Mr. Lembke’s agreement to accept a portion of the appellants' assessment in an apparent attempt to appease them and avoid this hearing. If the appellants had made a reasonable effort to inform themselves of the current practices under the Act they would have realised that the modification of their assessment was unlikely. Having come to this conclusion the Tribunal decided to restore the assessment calculated by the engineer and to assess cost of $250.00 against each of the appellants for this hearing. This cost to be paid into the account for the drain and used to reduce the total cost of the project. The balance of the cost of the hearing is to be charged to the account of the drainage works as assessed pro rata to the assessment schedule in the by-law.

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 be set aside and the assessments contained in the engineer’s report are restored.

2. The appellants Keith and Jean Klages shall pay to the township the sum of $250.00 which is to be credited to the account for the Lembke drain. This sum to be paid to the Township within 90 days of the date of passing of the By-law and failing payment by the due date shall be added to the taxes in arrears on W ½ of E ½ Lot 18, Concession 9.

3. The appellant Ursula Karalus shall pay to the township the sum of $250.00 which is to be credited to the account for the Lembke drain. This sum to be paid to the Township within 90 days of the date of passing of the By-law and failing payment by the due date shall be added to the taxes in arrears on W ¼ of Lot 18, Concession 10.

4. The sum of $500.00 is to be credited by the township to the account for the Lembke Municipal Drain and is not to be considered as eligible for grants under the Act.

5. Page 9 of the July 7, 1997 engineer’s report on the Lembke Municipal Drain, last paragraph, where the route of the Main Drain is described as being on the northeast quarter of Lot 17, Concession 9, the Clerk is to change the number 9 to the number 10 to indicate that the drain is located in Lot 17, Concession 10.

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

Dated at Chatsworth, Ontario, this 15th day of December, 1997.