Singers Corners Municipal Drain (Re), 1998 ONAFRAAT 26

Agriculture, Food and Rural Affairs Appeal Tribunal

1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Singers Corners Municipal Drain City of Thorold

Singers Corners Municipal Drain (RE) 1998 ONAFRAAT 26

STATUTE: Drainage Act

HEARING: June 23, 1998

DATE OF DECISION: July 6, 1998

1998-26

NEUTRAL CITATION: 1998 ONAFRAAT 26

Singers Corners Municipal Drain City of Thorold

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 Liberato Saltarelli, Theresa Vandor, John K. Wilson and George and Linda Klotz under Section 54 (Assessment) and Section 48(1,c) (Allowances) of the Drainage Act from the decision of the Court of Revision with respect to the Singers Corners Municipal Drain in the City of Thorold.

Before: John Taylor, Vice-Chair, Jim Rickard, Vice-Chair; Doug Flook, Member; Andy Koopal, Member.

Appearances: Liberato Saltarelli, appellant, in person. John K. Wilson, appellant, in person. George Klotz, appellant, in person Bryon Wiebe, P. Eng., appearing on behalf of the respondent, the City of Thorold.

DECISION OF THE TRIBUNAL

This appeal was heard in the council chambers of the City of Thorold in Thorold, Ontario on Tuesday, June 23, 1998. Liberato Saltarelli, Theresa Vandor, John K. Wilson and George and Linda Klotz appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 54 and Section 48(1,c) of the Drainage Act (the Act) with respect to the Singers Corners Municipal Drain in the City of Thorold (the City).

John Bice, Clerk of the City performed the duties of the Clerk of the Tribunal.

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. D17, s. 54.

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.

Allowances are set out in Sections 29 through 33 of the Act. Those sections are as follows:

29. The engineer in the report shall estimate and allow in money to the owner of any land that it is necessary to use,

(a) for the construction or improvement of a drainage works;

(b) for the disposal of material removed from drainage works;

(c) as a site for a pumping station to be used in connection with a drainage works; or

(d) as a means of access to any such pumping station, if, in the opinion of the engineer, such right of way is sufficient for the purposes of the drainage works,

the value of any such land or the damages, if any, thereto, and shall include such sums in the estimates of the cost of the construction, improvement, repair or maintenance of the drainage works. R.S.O. 1980, c. 126, s. 29.

30. The engineer shall determine the amount to be paid to persons entitled thereto for damage, if any, to ornamental trees, lawns, fences, lands and crops occasioned by the disposal of material removed from a drainage works and shall include such sums in the estimates of the cost of the construction, improvement, repair or maintenance of the drainage works. R.S.O. 1980, c. 126, s. 30.

31. Where an existing drain that was not constructed on requisition or petition under this Act or any predecessor of this Act is incorporated in whole or in part in a drainage works, the engineer in the report shall estimate and allow in money to the owner of such drain or part the value to the drainage works of such drain or part and shall include such sum in the estimates of the cost of the construction, improvement, repair or maintenance of the drainage works. R.S.O. 1980, c. 126, s. 31.

32. Where, in the opinion of the engineer, the cost of continuing a drainage works to a sufficient outlet or the cost of constructing or improving a drainage works with sufficient capacity to carry off the water will exceed the amount of injury likely to be caused to low‑lying lands along the course of or below the termination of the drainage works, instead of continuing the works to such an outlet, or making it of such capacity, the engineer may include in the estimate of cost a sufficient sum to compensate the owners of such low‑lying lands for any injuries they may sustain from the drainage works, and in the report the engineer shall determine the amount to be paid to the owners of such low‑lying lands in respect of such injuries. R.S.O. 1980, c. 126, s. 32.

33. Where the engineer thinks it expedient to make an allowance for loss of access to an owner instead of providing for the construction or the replacement, enlargement or other improvement of a bridge, the engineer shall in the report provide for payment to the owner of such amount as appears just by way of allowance for loss of access and shall include such sums in the estimates of the cost of the construction, improvement, repair or maintenance of the drainage works. R.S.O. 1980, c. 126, s. 33.

At the beginning of the hearing, the Tribunal issued an order that all landowners assessed or compensated in the engineer’s report on the Singers Corners Municipal Drain, dated December 15, 1997, having been served notice of this hearing are made parties to this hearing.

The Background

The Singers Corners Municipal Drain report was prepared pursuant to Section 4 of the Act. The City received the original petition for drainage works, dated July 22, 1994, submitted by the Regional Municipality of Niagara (the Region), requesting an improved drainage outlet on the north side of Port Robinson Road (Regional Road 63), between Cataract Road and Merrittville Highway (Regional Road 50).

The engineer determined that the area requiring drainage consists of a portion of the following lands:

• Part of Lots 164, 165, 170, 211 and 212 in the City of Thorold.
• Part of Lots 165 to 168, 170 to 172 in the Town of Pelham.
• Part of Lot 1, Concession 7 and Lot 1, Concession 8 in the Town of Pelham.
• Part of Lots 169, 174, 207 to 210, 217 to 221 and 226 to 228 in the City of Thorold.
• Part of Lots 173 to 177 in the Town of Pelham.
• Part of Lots 174, 175 and 228 in the City of Welland.

The current watercourse does not have any legal status as a Municipal Drain. However, the watercourse does have a history of various improvement works being implemented along a number of sections throughout its length. These improvements were made at the expense of the road authorities.

The proposed improvement works on the Singers Corners Municipal Drain generally consists of cleaning and/or deepening and widening of the existing channels (3479 meters of main drain, 575 meters of Branch No. 1 drain), cleaning and/or resetting existing culverts, or replacing existing culverts and new channel construction, and miscellaneous erosion protection works.

The proposed works will be constructed partially on private lands. Allowances are provided, under Section 29 of the Act, to abutting landowners for the establishment of a right-of-way to construct the Singers Corners Municipal Drain. Allowances are also provided under Sections 30 of the Act for damages from the levelling of spoil during construction of the drain. Allowances have also been granted under Section 31 of the Act for an existing culvert assumed as part of the drain. No allowances were paid under Sections 32 (insufficient outlet) or 33 (loss of access) of the Act.

The built up area within the Town of Pelham was assessed as a block.

The total drainage area of this proposed drain is 922.7 hectares. The total cost of the proposed Singers Corners Municipal Drain is estimated to be $329,400.00.

The Issue

The issues before the Tribunal are:

1. Are the assessments as set out in the engineer’s report on the Singers Corners Municipal Drain report, dated December 15, 1997, and confirmed by the Court of Revision appropriate?

2. Are the allowances as proposed by the engineer adequate?

The Evidence and the Findings

Liberato Saltarelli, assessed landowner and appellant at the hearing, told the Tribunal that he is the owner of a ten acre lot (lot 165), situated on the north side of Port Robinson Road. The land is not cultivated and is covered in natural wild grass. While not a factor for this hearing, he said that his taxes have doubled from $800 to $2000 for this vacant land. He said that the water that flows from the property is not collected on it, but is the water from Fonthill flowing across his land to the Singers Corners Drain. He said that, in his opinion, less than 2% of the volume of water flowing through his land originates on his land. He said that the proposed project stops a half mile downstream from his property so he receives no benefit from the work. Mr. Saltarelli told the Tribunal that the City has not provided any means of drainage along Port Robinson Road. The water just runs past his property and the corner of the driveway is flooded but he is asked to pay for a project that provides no benefit to him. He said he is willing to help his neighbours but not as much as he is assessed for this project. Mr. Saltarelli asked the Tribunal to reduce his assessment but did not indicate how much or where the Tribunal should assign any reduction it made to his assessment.

Bryon Wiebe, P. Eng., the engineer who prepared the December 15, 1997 report on the Singers Corners Municipal Drain, told the Tribunal that there are 2,000 acres in the watershed and Mr. Saltarelli has ten of these acres. He said there is a significant area upstream in Pelham. Each parcel of land is assessed for its proportion of the water that flows through the property and gets to the drain. He pointed out that the total assessment in Pelham is just over $90,000.00, and the residential block assessment is $41,000.00. He said Mr. Saltarelli is only charged for the water that flows from his land into the proposed work, not the water that flows through his land from Pelham.

Mr. Wiebe told the Tribunal that it is regrettable that staff from the Region did not attend at the hearing to speak to the concerns of the ratepayers. He told the Tribunal that his experience with the Region is that as soon as there is a legal outlet for the water, the Region will do roadside ditching. He said that he expects the Region will improve the road ditches on Port Robinson Road as soon as the work on the outlet is completed. This should assist Mr. Saltarelli’s drainage problems at his driveway.

John Kenneth Wilson told the Tribunal that he owns the property at the outlet of the drain. He filed photos showing the amount of water at Singers Corners and at his property on the same date. He said he was concerned that the work would bring the water faster from Singers Corners and just dump the water into the wetland downstream of his property without a good outlet. He told the Tribunal that there is a dam at the Welland Canal, downstream from his property, that controls the level of water in the wetland. He feels that, unless the channel is taken to the dam so that the water can flow away, all the project will accomplish is more flooding and damage of his land. He said if the allowances in the report were to compensate him for this flooding then the allowances are completely inadequate. Mr. Wilson’s father also addressed the Tribunal expressing concern about flooding of the parcel of land.

Mr. Wiebe told the Tribunal that the channel across the Wilson property has insufficient capacity to carry a two year storm. He said it has accumulated silt and debris. The report proposes to deepen and widen this section of the channel so it can carry the two year storm through the Wilson property to the downstream wetland. He said the computer modeling of the before and after conditions on this property indicate that after the work is done the flood levels are expected to decrease about 0.5 meters during storms. Mr. Wiebe said improving the channel across the property should not make the situation worse than it is now.

Mr. Wiebe told the Tribunal that he has had discussions with the Seaway Authority and it has agreed to allow removal of an undersized culvert in an unused causeway in the property downstream from Mr. Wilson. He said this should improve the flow from the Wilson lands.

Mr. Wiebe assured the Tribunal and both Messieurs Wilson that the allowances paid in the report are for right-of-way and crop damage. There are no allowances paid for insufficient outlet or flooding of the Wilson land.

Kent Schachowskoj, an employee of Wiebe Engineering, told the Tribunal that he took elevations in the wetland area. He said there is elevation from the property through the wetland.

Mr. Wiebe said that the elevation of the ditch bottom at the east limit of the Wilson property is 175.5 meters. The invert of the private crossing, about 700 meters east of the Wilson property boundary, is 174.85 meters. The invert of the crossing under the Rail Road, about 900 meters east of the Wilson property boundary, is 174.65 meters. The elevation of the weir at the Welland Canal, about 1600 meters east of the Wilson’s, is 174.3 meters. He said this shows there is fall to take the water away from the Wilson property through the wetland.

George Klotz told the Tribunal that he owns the properties identified as Roll Numbers 31-69, 31-6901 and 31-67 on the north side of Cataract Road. He said that he has 645 feet of drain running north and 1100 feet east around his land. He said he does not believe the allowance provided is satisfactory. The drain has not been maintained and has trees, glass and lumber in it. The report proposes to remove this material and cast it onto his land and level it. The report requires a right of way six meters wide on each side of the drain for working space and maintenance. The existing drain is seven meters wide from top of bank to top of bank, but the report is not providing allowances for the land currently consumed by the drain. He said that no compensation had ever been paid for the use of this land as a drain.

Mr. Klotz said that he should be compensated for the current ditch (seven meters wide, 532 meters long) plus the working width/buffer strip (12 meters, wide 532 meters long) plus damages for the spreading of the spoiled material. He offered into evidence the fact that there is ten acres of land just across the road for sale at an asking price of $95,000 ($23,500 per hectare). He said that he should be compensated using land values in the same range.

Mr. Klotz told the Tribunal that there was an error in the engineer’s report. The report says that the drain is located on the boundary between him and his neighbour (Parcel 31-68), but he has surveyed his land and the drain is located entirely on his property and therefore he should get the allowances in the report that are currently assigned to Mr. G. Losier (Roll 31-68).

Mr. Wiebe said that there is a mistake in his report. He said the Losier property (Roll 31-68) has a total allowance of $280. This was made on the understanding that the drain was on the Klotz property boundary. He now knows this is in error and $140 of the allowance should be assigned to property Roll Number 31-67 (Klotz). The reason only half should be transferred is because Mr. Losier also shares work with the Region and half of the allowance is for that work.

Mr. Wiebe said that Mr. Klotz is correct that no allowance is made for the existing channel on his property or any other. He said there is an existing channel there, partially natural and partially constructed, at no cost to the owner. He is providing allowances only for the improvements and the six meter working width.

Mr. Wiebe said that he used a value of $5,000 per hectare for residential land and $2,500 per hectare for farm land to calculate the value of the allowances provided. He told the Tribunal these figures have been used for some time in drainage reports in this area. He pointed out that it is not the market value of land but a reasonable amount.

George Young, an assessed owner from Fonthill told the Tribunal he wanted to find out why the drain has to be done so slowly. He said it started in 1994 and he would like to see it done.

The Tribunal examined the evidence and drew the following conclusions. Mr. Saltarelli complained that he is assessed too high. He told the Tribunal that water runs through his land from Fonthill and he should not be responsible for paying for all of water that flows through his land. He feels his land only contributes a small amount of water from his ten acres of naturally grassed land. He contributes very little to the flow. The Tribunal agrees that lands in natural use have less runoff than lands that are under cultivation or developed. The Tribunal compared the assessment on the Saltarelli property to the assessment on the neighboring properties and is satisfied that the assessment on the Saltarelli property is comparable to the assessment on the neighboring lands. Therefore, the Tribunal decided not to disturb this assessment.

The Wilsons are concerned that the assessment against their lands is too large. They are concerned that the upstream improvements will cause the water to flow onto their lands faster and build up higher because there is no work being done downstream of their property. The land downstream of the Wilson property is wetland and the outflow is controlled by a dam at the Welland Canal. They are concerned that the back up of water on their property will result in a reduction of the tileable acreage they now have on both sides of the drain. The engineer clarified that the allowances provided are under Section 29 (lands used for construction) and Section 30 (damage to crops) of the Act not Section 32 (insufficient outlet). He said that the work being proposed would improve the situation on the Wilson lands by lowering the flood level by approximately 0.5 meters during the two year storm. If in the future the Wilson’s land suffers from additional flooding they are open to petition the Council for an extension of the drain at which time there will have to be a decision made on whether it is practical to extend the drain or pay an allowance under Section 32. The Tribunal notes that the difference in elevation from the downstream boundary of the Wilson land to the Rail Road bridge (about 700 meters) is approximately 0.9 meters and from there to the Canal (about 700 meters) is 0.3 meters. This amount of fall should provide outlet for the drainage water as long as the channel is maintained. Now that the channel through the Wilson property is covered by a by-law under the Act the Wilsons can enforce maintenance of this channel.

Mr. George Klotz feels that he is under compensated for the land used for the drain. He has 1745 feet of drain being improved with the excavated materials being cast on his lands. The engineer’s evidence is that the quantity of materials to be excavated is not substantial. Mr. Klotz feels he is inadequately compensated for two reasons. First, since the drain was not previously part of any drainage works, he should be compensated for the value of the land covered by the existing ditch as well as the land used for the improvements and the working area for construction. He feels he should be compensated for two acres of land used. Secondly, he feels the allowance for crop damage is too low. In response, Mr. Wiebe said he did not provide allowances to any landowner for land currently occupied by the drain. It is his position that in some areas the existing drain is a natural watercourse, in other areas it was dug many years ago with no record as to whether compensation was allowed to a prior owner. It was not in dispute that the existing course of the drain has been in its present location for well over 20 years. Mr. Klotz purchased his property in the last ten years and so was aware of the location of the drain at the time of purchase. The Tribunal agrees with the approach of the engineer in this case and feels that Mr. Klotz has no legitimate claim for the value of the land used by the existing drain given the long use of this land as a drain by the upstream landowners. Moreover, Mr. Klotz is not being treated any differently than other landowners through whose property the existing drain passes.

With respect to the claim for additional compensation for crop damage and land used for working width, the Tribunal agrees with Mr. Wiebe’s measure of allowance provided in this case. Mr. Wiebe told the Tribunal that in his long practice in the locality he has used a figure of $1000 per acre for compensation. The Tribunal notes that all landowners have been treated in the same manner and therefore decided not to adjust the figures in this case. Mr. Klotz pointed out an error in the report in that the allowance of $140 provided to Mr. G. E. Losier (Roll 31-68) should be provided to him because he actually owns the land on both sides of the drain. Mr. Wiebe agreed and requested that the Tribunal transfer the $140 allowance to Mr. Klotz (Roll Number 31-67). The Tribunal will order this change in the report. The allowance to Property Roll Number 31-67 to increase from $825 to $965, the allowance to Property Roll Number 31-68 be reduced from $280 to $140.

Mr. George Young, assessed landowner, had not filed an appeal but addressed the Tribunal. He expressed his frustration with the length of the proceedings and urged the Tribunal to proceed.

Theresa Vandor submitted a written appeal to the Tribunal objecting to the project. She did not appear to present any evidence or argument to support her position. The evidence filed with the Tribunal indicates that the project is required and should proceed. The Tribunal dismissed the appeal of Theresa Vandor due to lack of evidence from the appellant.

Doris Muma called the Tribunal office to explain that she could not attend at the hearing but wished to express her concern that she is assessed for this project while at the same time she has an agreement with the municipality that, in exchange for an easement to improve the road drain, the municipality would construct and maintain the drain across her property. In the view of the Tribunal, the agreement does not exempt the Muma property from being assessed under the Act for a project. If Mr. and Mrs. Muma have an enforceable agreement with the municipality, concerning the cost of maintaining the drain through their property they should seek to enforce that agreement with the municipality as an arrangement separate from the Act.

ORDER OF THE TRIBUNAL

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

1. The appeal of Liberato Saltarelli concerning the assessments on the proposed Singers Corners Municipal Drain is dismissed.

2. The appeal of Theresa Vandor concerning the assessment on the proposed Singers Corners Municipal Drain is dismissed for lack of evidence from the appellant.

3. The appeal of John K. Wilson concerning the assessments and allowances for the Singers Corners Municipal Drain is dismissed.

4. The appeal of George Klotz concerning the allowances for the Singers Corners Municipal Drain is dismissed.

5. The Clerk is to amend the schedule of allowances by reducing the allowance to Property Roll Number 31-68 (Losier) from the sum of $280.00 to the sum of $140.00. The allowance to Property Roll Number 31-67 (Klotz) is to be increased by the sum of $140.00 to $965.00.

6. 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. The Tribunal was convinced by the evidence that the engineer had calculated the proposed assessments for the Singers Corners Municipal Drain using accepted principles and in a consistent manner.

2. The Tribunal was convinced by the evidence that the allowances provided for the proposed Singers Corners Municipal Drain were calculated in a reasonable manner.

Dated at Tilbury, Ontario this 6^th day of July, 1998