Bellcreft Beach Drainage and Pumping System (Re), 1998 ONAFRAAT 34

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:

Bellcreft Beach Drainage and Pumping System Township of Colchester South

Bellcreft Beach Drainage and Pumping System (RE) 1998 ONAFRAAT 34

STATUTE:

Drainage Act

HEARING:

August 19, 1998

DATE OF DECISION:

August 27, 1998

1998-34

NEUTRAL CITATION:

1998 ONAFRAAT 34

Bellcreft Beach Drainage and Pumping System Township of Colchester South

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 Daniel and Barbara Bruner under Sections 48 and 54 of the Drainage Act and an appeal under Section 48 of the Act by James and Barbara Levy with respect to the Bellcreft Beach Drainage and Pumping System in the Township of Colchester South

Before:

John Taylor, Vice-Chair; Ed Mailloux, Vice-Chair; Herb Todgham, Vice-Chair

Appearances:

Mr. Daniel Bruner, appellant.

Mr. E. Marshall, counsel to the respondent, the Corporation of the Township of Colchester South.

DECISION OF THE TRIBUNAL

This appeal was heard on Wednesday August 19th, 1998 in the Council Chambers of the Township of Colchester South (the Township) located in Harrow, Ontario. Michael Girard, Clerk Treasurer of the Township performed the duties of the Clerk of the Tribunal.

Daniel and Barbara Bruner appealed to the Ontario Drainage Tribunal (the Tribunal) under Sections 48 and 54 of the Drainage Act (the Act) and James and Barbara Levy appealed to the Tribunal under Section 48 of the Act with respect to the Bellcreft Beach Drainage and Pumping System in the Township of Colchester South

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. D17, s. 54.

At the beginning of the hearing the Tribunal issued an order that all landowners assessed or compensated in the March 20th , 1998 engineer’s report on the Bellcreft Beach Drainage and Pumping System, Township of Colchester South, having been served notice of this hearing, are made parties to this hearing.

The Background

The area of Lots 91, 92 and 93 F.L. lying south of County Road 50 and extending to the shore of Lake Erie has been developed over a number of years into what are essentially residential subdivisions designated as Bellcreft Beach No. 1 and Bellcreft Beach No. 2. There are three plans of subdivision covering the affected area. This area has developed from cottages with lanes into a subdivision which is mainly year round homes on roads and streets serviced with municipal water and sewer. Most of the roads are serviced by a storm drainage system that eventually collects at a pumping station located in Bellcreft Beach No. 1. All of the storm drainage water from the area is pumped to Lake Erie.

Since the area was developed over a number of years there have been several different projects to construct parts of the storm water drainage system but no co-ordinated plan of development was undertaken. The final result is the low lying lands near the lake are flooded on an annual basis. The current report addresses this flooding situation by recommending the following work,

1. Reconstruction of several of the existing storm sewers alongside the roads.

2. Cleaning out the existing storm water system and abandoning the portions that are made redundant by the new construction.

3. Re-routing some of the storm water to alternative storm sewers which all eventually lead to the Bellcreft pumping station at Lake Erie.

4. Modification to the pump and outlet pipe to improve the efficiency of the pump.

5. Providing for a gravity overflow of storm water when the inflow to the pump station is greater than the pumping capacity.

The total estimated cost of the work is $322,756.00. The total area assessed is 140.7 acres of which 86.3 acres is in agricultural use, 38 acres is in residential use and 16.4 acres are used for roads. $219,149.00 is assessed as benefit ($161,010.00 against lands, $58,139.00 against roads), $93,604.00 is assessed as outlet ($61,401.00 against lands and $30,203.00 against roads) and $10,003.00 is assessed as a special benefit to the water department of the Township for the extra costs involved in crossing the municipal water lines.

The Issue

The issues before the Tribunal are:

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

2. Should the work be modified by exploring the possibility of constructing a retention pond on the north side of County Road 50 to reduce the speed of runoff from the upper watershed and control the flow through the Beach areas to the outlet pump?

The Evidence and the Findings

The appellants James and Barbara Levy failed to appear at the hearing and therefore their appeal under Section 48 was dismissed.

Mr. Gerard Rood, P. Eng., the engineer who prepared and presented the March 20th engineer’s report, described how he had arrived at the assessments for this work as follows.

1. Residential lands south of County Road 50 were assessed a flat rate for benefit of $750.00 per parcel.

2. Residential lands north of County Road 50 do not abut any of the work and were assessed a flat rate of $375.00 per parcel.

3. An additional benefit assessment was charged to the residential lands depending on the area of the parcel, its location and its elevation from the drain. This rate was $1,150.00 per acre in the low lying land susceptible to flooding and varied to a low as $350.00 per acre in the higher lands like those of the appellant Bruner.

4. Outlet was assessed at the rate of $1,015.00 per equivalent acre over the entire watershed. Mr. Rood argued that all lands use the same outlet and the drainage system is interconnected so a flat rate per acre for outlet was appropriate in his opinion.

5. To calculate equivalent acres he used a runoff factor of 1 for agricultural lands, 3.5 for residential lands and 5 for roads. When calculating the acreage of the agricultural land he also accounted for the fact that some of the land is tile drained to a different outlet.

Mr. Rood told the Tribunal that the work he is proposing is a system for the area. Some of the existing storm sewers have been enlarged to accommodate more flow, some have been re-routed to different connecting drains in the watershed thus freeing capacity in the former outlet drain and eliminating the need to enlarge portions of the work. All of the area will benefit from the work done to improve the outlet. He said that once the work is completed the entire area will be serviced with a storm sewer system that accommodates a one in five year storm event. He said all of the land received the same level of protection in the project. Because of these factors, Mr. Rood argued that a flat rate per parcel for benefit modified by an amount based on area, location and elevation, is an appropriate method of assessment in this instance.

Mr. Rood told the Tribunal that there is still one outstanding issue from the Court of Revision. Richard and Judith Chittle own the parcels designated as Roll Numbers 070-186 and 070-187. They have been assessed on the basis of this land being two parcels. The owners informed the Court of Revision that they had taken steps to have the assessment office change the assessment so this land showed as one parcel and therefore they should be assessed as one parcel for the purposes of this report. The Court of Revision agreed that if the Chittle’s filed documents with the Clerk indicating that the assessment office had revised the assessment roll numbers on this property, then the benefit assessment in the report should be reduced and the reduction in this assessment added to the assessment against the Township roads. Mr. Rood told the Tribunal that documents had been filed with the Clerk. He asked the Tribunal to order an amendment to the assessment schedule reducing the benefit assessment against the Chittle lands from $1,708.00 to $901.00. The $807.00 reduction he said should be added to the benefit assessment against the Township roads in the same Registered Plan. This he said would put into effect the decision of the Court of Revision.

Mr. Daniel Bruner, an assessed owner and appellant, told the Tribunal that he objected to the amount of the flat rate assessment per parcel of land. He pointed out that several of the parcels consisted of more than one lot in the original plans of subdivision. He argued that some of these parcels could be subdivided into the original lots and those lots built on once the drain was installed and the flooding reduced. He suggested that it is inappropriate to charge the land of others for the benefits these property owners would reap from being able to sever and sell lots. He said that his parcel contains two lots that could be built on. He is assessed benefit for only one parcel not the two lots. He said he could sever the second lot and build at any time and it is unfair to his neighbours that he should be charged for benefit on only one parcel.. He suggested that if all the lots that could be built on were identified and accounted for in the assessment, the amount of the flat rate assessment could be reduced to perhaps $375.00. As an example he pointed out the parcel owned by the Polish Peoples Home Association. It is assessed as one parcel but could be divided into five or six lots and it is currently for sale. He suggested that once this parcel is sold, subdivided and built on, there will be a need for another report, larger drains and more cost. He suggested changing the basis of assessment now and accommodating the future development in the design to avoid future costs.

Mr. Bruner told the Tribunal that the preliminary report had suggested a holding pond in the upper watershed on the property owned by Mr. Gorski. He said he thought that such a pond would reduce the rate of runoff, hold water on the agricultural land and reduce the flows though the Beach. He recommended more thought be given to looking at a holding pond as an alternative to the proposed work.

In response to questions, Mr. Bruner told the Tribunal that he did not have any engineering evidence to present on the proposal of a holding pond.

Mr. Bruner also expressed concern that there is no back up power source for the pump. He explained that when there is a storm and the pumps are needed the electrical power is often out so the pumps do not work.

Mr. Glen Middleton, assessed owner, addressed the Tribunal. He stated that he is in favor of the work proceeding. He said he has been patiently waiting since 1991 for a project to be built to relieve the flood damage that his property is suffering and he is tired of waiting.

Mr. Paul Charette, assessed owner, told the Tribunal that he feels the assessment on his land is too high,. He has land high in the subdivision and does not suffer from flooding so does not see why he should be assessed so much for benefit. He argued that his 1.5 lots, not in the flood zone, is assessed as much benefit as the people in the flood zone right beside the pump.

Richard Winterburn, assessed owner, told the Tribunal that his property suffers flooding damage and he is anxious to get on with a project to solve this problem.

Mr. Ted Gorski, assessed owner, told the Tribunal that he owns much of the agricultural land on the north side of County Road 50. There are two ten inch tile drains from his property that run to the Beach. He suggested that these tile drains could be diverted along the north side of the County Road to outlet into open ditches beyond the Beach. He also suggested using an continuous screw type of pump to move the water rather than the existing pumps. He also offered as a suggestion, putting a deep catchbasin at the boundary of his land with a pipe going to the lake with a flat grade. When the water was high on the agricultural land it would flow to the lake, in the summer he would have a supply of irrigation water from the lake. This would solve two problems in his view. First the water from the upper watershed would not have to flow through the storm sewers in the subdivision and secondly he would have access to a water supply for irrigation.

Mr. Mike Gerard, Clerk Treasurer of the Township, told the Tribunal that the existing bylaws of the municipality would only allow another six of the undersized building lots in the Beach to be developed. All other possible building lots had been identified at the time the report was written and accounted for by the engineer in the report. He said adopting Mr. Bruner’s suggestion of charging by the lot rather than the parcel would have little effect on the flat rate portion of the assessments.

In his reply evidence, Mr. Rood explained that the retention pond on the Gorski property had been considered in the preliminary report and rejected because it was not cost effective. The land slope is fairly steep so the runoff is fast and only a limited amount of water could be stored. The pond would require an outlet to be constructed through the subdivision. He said he accomplished the desired result by increasing the pipe size one increment from the County Road to the outlet pump.

He said he designed the system to provide a uniform level of protection to all lands in the area. He used a runoff factor of 3.5 for all residential lots, including vacant land, so additional buildings of the type that are common in the area will not affect his design calculations or result in the need for an additional report.

In response to Mr. Bruner, he said that the project proposal is to install catchbasins along the road and enlarge the pipe capacity so Mr. Bruner will have direct access to an outlet whether he chooses to use it or not. Therefore, in Mr. Rood’s opinion, Mr. Bruner does receive benefit from the project. He said he is also providing a gravity outlet at the pump so during times of storm events, when the flow is greater than the pumps can handle, the water can escape through the gravity outlet. His proposal also lowers the lift on the pumps and should double the existing pumping capacity. Mr. Rood said that his proposal will handle 80% of the storm events, while in 20% of occurrences, there will be less flooding than in the past.

Mr. Rood pointed out that if there is future development appropriate costs can be charged to those properties using Sections 65 and 66 of the Act. He said he recommends the Township address further development using these sections.

The Tribunal pointed out to Mr. Rood that his report would be more easily understood if he had shown the watershed boundary, internal watershed boundaries and the limits of the various plans of subdivision on the plan contained in his report. The Tribunal urges all engineers to provide similar information on plans to assist the landowners in evaluating project proposals.

The Tribunal notes that this is the first time that the cost of the storm drainage projects at the Beach have been assessed to the entire area. In previous reports, where a section of storm drain was constructed, the cost was charged to the portion of the Beach directly affected by the work. The Tribunal understands that this change in approach caused some of the concern expressed at the hearing. The landowners have been accustomed to being charged for work that abuts their property not work that is somewhat removed. The Tribunal recommends that if work is required in the Beach in the future, consideration should be given to assessing the costs as a block assessment against the entire Bellcreft Beach since this current work has the effect of integrating all the previous work into one interrelated functioning system.

The Tribunal notes that the proposal for the holding pond was in the preliminary report in 1994. Anyone who wished to contest the engineer’s decision that the option was not cost effective has had time to express their opinion and to obtain engineering evidence on the proposal to present at the hearing. No such evidence was presented. Likewise, suggestions to divert the tile drainage water from the upper watershed or combine an irrigation water supply with a proposed diversion of drainage water from the upper watershed is of little use at this stage of the project, unless accompanied with complete documents including plans, cost estimates and assessments so the Tribunal can make a comparison to the recommended option. The Tribunal gave little weight to these options in arriving at its decision.

The Tribunal examined the evidence with respect to the assessments. While the Tribunal would not take the same approach as the engineer in dividing the assessment, only one land owner of the 130 or so properties assessed appealed. It appears to the Tribunal that this owner has been treated in a manner consistent with the treatment provided to all other assessed landowners. Based on the evidence of Mr. Girard that a limited number of additional lots could be built on, the Tribunal was not convinced that charging a flat rate on the number of viable building lots as opposed to the number of parcels would result in a change in the assessment schedule that justifies the cost of revising the report. The Tribunal concludes that, in the final analysis, the assessments proposed by the engineer and modified by the Court of Revision are appropriate considering all of the circumstances of this project.

ORDER OF THE TRIBUNAL

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

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

2. The appeal of Daniel and Barbara Bruner under Section 48 and under Section 54 is dismissed.

3. The benefit assessment charged against the lands of Richard and Judith Chittle designated as Roll Numbers 070-186 and 070-187. is to be reduced from the sum of $1,708.00 to the sum of $901.00.

4. The benefit assessments against the streets and roads in Plan 1310 is to be increased by $807.00 from the sum of $22,422.00 to the sum of $23,229.00.

5. 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 final result of the proposed assessment is fair and reasonable in the circumstances of this project.

2. The Tribunal was not convinced by the evidence that the other options mentioned at the hearing should be considered at this stage of the project. The Tribunal urges appellants who have alternative solutions to discuss their alternatives with the project engineer in the early stages of the report preparation, or, at the very least to provide engineering evidence on the proposal to the Tribunal at the hearing, either through the project engineer or otherwise.

Dated at Tilbury, Ontario this 27th day of August, 1998.