Rick Stewart v. Municipality of West Elgin, 1999 ONAFRAAT 15

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

Zoller Drain and the Zoller Drain Extension Reassessment Municipality of West Elgin

Zoller Drain and the Zoller Drain Extension Reassessment (RE) 1999 ONAFRAAT 15

Drainage Act

June 15, 1999

DATE OF DECISION:

June 29, 1999

1999-15

1999 ONAFRAAT 15

Zoller Drain and the Zoller Drain Extension Reassessment Municipality of West Elgin

IN THE MATTER OF THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.

An appeal to the Ontario Drainage Tribunal by Rick Stewart, West Lorne, Ontario, under Section 54 of the Drainage Act, from the decision of the Court of Revision with respect to the Zoller Drain and the Zoller Drain Extension Reassessment in the Municipality of West Elgin.

Before:

Andrew Wright, Vice-Chair; Herb Todgham, Vice-Chair; Warren Jenner, Member.

Appearances:

Rick Stewart, appellant.

Denis McCready, P. Eng., on behalf of the respondent the Municipality of West Elgin.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Municipality of West Elgin at Rodney, Ontario, on Tuesday June 15, 1999. Rick Stewart appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 54 of the Drainage Act (the Act) from the decision of the Court of Revision with respect to the Zoller Drain and the Zoller Drain Extension Reassessment in the Municipality of West Elgin (the Municipality).

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed in the January 11, 1999 engineer’s report, signed by Mr. Denis McCready P. Eng., on the Zoller Drain and the Zoller Drain Extension Reassessment parties to this hearing. Affidavit proof was filed with the Tribunal that all parties have been served with notice of this hearing.

Section 54 of the Act states:

(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.

Joanne Groch, Administrator-Treasurer of the Municipality, performed the duties of the Clerk of the Tribunal.

The Background

The present Zoller Drain has its outlet in the N½ of Lot 18, Concession 10 and extends upstream, northerly to its junction with the Bale Drain in the S½ of Lot 20, Concession 9. The Zoller Drain Extension has its outlet in Lot 16, Concession 11 and extends upstream, northerly to a point in Lot 17, Concession 10 at the sewage lagoon for the former Village of West Lorne. Over the years, works of repair and improvement have been carried out under reports prepared under the Act.

The purpose of the January 11, 1999 report is not to authorize any works of repair and improvement on the Zoller Drain or the Zoller Drain Extension, but is only to establish a method to assess the costs of future maintenance of the existing municipal drainage works.

The Issue

The issue before the Tribunal is whether or not the assessments for the preparation, distribution and consideration of the report under Section 76 for future maintenance work on the Zoller Drain and Zoller Drain Extension, as proposed by the engineer and modified by the Court of Revision, are appropriate.

The Evidence and the Findings

At the beginning of the hearing, Mr. McCready, P. Eng., speaking on behalf of the respondent Municipality, made a preliminary motion that the appeal be dismissed on the grounds that:

This is not an appeal of an individual assessment. The appellant intends to represent a group of owners - all non-farm lots - but the appellant is not the agent of the other owners and has no authority to appeal on behalf of the class of properties.
The Appellant wishes to challenge the authority of the engineer to assess the cost of the report on the basis shown in the report. This challenge is beyond the authority of the Court of Revision and the Tribunal.

Mr. Rick Stewart, the appellant, responded to the motion indicating that the Tribunal should hear the appeal. He argued that:

If the former Village of West Lorne (West Lorne) had remained separated, the Township of Aldborough would have had to apply to the Tribunal for permission to obtain a report to vary the assessment for maintenance and the residents of West Lorne would have been represented by their council at that time. Since this did not happen, he has, in his opinion, an obligation to represent the owners in the village under this unusual circumstance.
Some residents of West Lorne have asked him to represent them at the hearing.
While he may not have a legal right to represent the other residents of West Lorne, he noticed unfairness in the manner in which the cost of the report preparation is proposed to be assessed and appealed.
As an assessed owner he has the opportunity to appeal the decision of the Court of Revision stating that other lands are assessed too high or too low.

Mr. Stewart clarified that he was not challenging the engineer’s authority to assess the cost, but is challenging the method of assessment proposed and the amounts of the individual assessments.

After considering the preliminary motion, the Tribunal decided that it would hear the appeal on the basis that Mr. Stewart’s lot is assessed too high. In making this decision, the Tribunal noted that Mr. Stewart is not to be taken as making representations on behalf of others.

Mr. McCready told the Tribunal that the report deals with two drainage works. The Zoller Drain Extension and the Zoller Drain. He noted that the Zoller Drain Extension outlets into a natural watercourse in Concession 11 and proceeds upstream to the south end of the West Lorne sewage lagoon.

When the sewage lagoon was built it occupied an area that was a natural watercourse. During construction, this natural watercourse was re-routed by the Ministry of the Environment. This re-routed natural watercourse maintains its former outlet into the Zoller Drain Extension and has no status under the Act.

The Zoller Drain commences at the north end of the sewage lagoon in the watercourse and proceeds upstream across County Road # 76 (Graham Street), the main street of West Lorne, and from there further upstream to the junction with the Bale Drain.

In 1971, a 24 inch to 54 inch storm sewer was constructed along Graham Road from the Zoller Drain north through West Lorne.

West Lorne amalgamated with the former Township of Aldborough on January 1, 1998 to become the Municipality of West Elgin.

Mr. McCready told the Tribunal that he divided the drain into three parts for the purposes of assessment. The Zoller Drain Extension from the sewage lagoon to the outlet was the first part. He provided a separate schedule of assessment based on an hypothetical expenditure of $14,000 to brush and clean that portion of the drainage works. The entire area of West Lorne is assessed into this portion of the drainage works for outlet liability.

The second part of the work is the Zoller Drain west of the east limit of Graham Road. He based his assessment schedule on an hypothetical expenditure of $3,000. For this section, not all lands in West Lorne drain through it and therefore not all of West Lorne is assessed.

The third section is the Zoller Drain east of Graham Road, i.e. from the east limit of the road to the head of the drain at its junction with the Bale Drain. A hypothetical maintenance cost was set at $8,000 and is divided among the properties that drain through it, including a portion of West Lorne.

In all three sections the proposed assessments are based on the assessments for outlet and benefit in the previous reports excepting that the benefit to outlet ratio was reduced in the Zoller Drain Extension to reflect the fact that major deepening and widening will not be done again under maintenance.

Mr. McCready also told the Tribunal that a review of the drainage reports in the Municipality indicated that the Zoller Drain and Zoller Drain Extension were the only projects where a block assessment had been used to assess the cost of work and future maintenance. The Council of West Lorne assessed the Village as a block. One of the objectives of the current report was to convert the assessment in West Lorne to individual lot assessments. This was a time consuming process because a base map had to be created, roll numbers identified, owners identified, watersheds located, etcetera.

Mr. McCready said that he considered how to assess the cost of preparing the report. His first instinct was to assess the cost on a pro rated assessment based on the Total Maintenance Assessment Column in the schedule of assessment in the report. When he examined the result of that calculation using what he called a “fairness test”, he was of the opinion that the properties that were assessed for benefit were charged too much of the cost of the report. He then considered that it took about an equal amount of time per property to prepare the plan and assessments so he decided to assess the report cost on an equal cost per property. He used an even dollar amount of $23 per property for the assessment and then added a dollar or two to each of the larger properties in order to make up the total estimated cost of the report.

Mr. Duncan McPhail, Mayor of West Elgin, told the Tribunal that the council had struggled with the issue of fairness in this project. He said that the council considered the same information that had been presented to the Tribunal. He said that the council had two objectives in requesting the report. One was to obtain an appropriate schedule to use for maintenance work on the drains. The other was to bring consistency in the drainage policy of the newly formed municipality. When West Lorne was separate, it had a different policy on assessment of drains that made use of block assessments. The council of the new Municipality is trying to put consistency into drainage works across the Municipality since it is not in the practice of using block assessments.

Graham Warwick, Deputy Mayor of the Municipality, told the Tribunal that the issue of block assessments in West Lorne was an important question to answer. The main objective of council was to get fairness in the project.

Mr. Rick Stewart, appellant, told the Tribunal that he was not disputing the assessments for future works of drain maintenance as proposed. What he was concerned about was the way the engineer assessed the cost of preparing the report.

Mr. Stewart told the Tribunal that West Lorne was assessed as a block assessment against the roads in previous reports. Previous engineers had determined that the cost of assessing each individual lot was disproportionate to the assessments that would be collected and had thus charged the cost to the roads. He said that Mr. McCready had assessed the cost of preparing the current report in an arbitrary manner, not related to the benefit the work provides nor the outlet liabilities of the various landowners. The net result of this assessment is an unjust burden on the small properties for the preparation of the report. He pointed out that 22.9% of the cost of maintenance work is assessed to lands in West Lorne but 75.6% of the cost of preparing the report is assessed to West Lorne. He argued that the assessment of the cost of the report should reflect the value of the drain to the property not just the number of properties involved. The Zoller Drain and Zoller Drain Extension provide outlet but not benefit to the properties of West Lorne. He said that the small properties did not generate the need for this report and do not deserve to pay disproportionately as a result. He argued that the primary cause of the updated schedule of assessment is the amalgamation of the municipalities and the requirement of the Act to assess properties appropriately in the event of maintenance. Therefore, the cost of preparing the report should be pro rated to the total of the maintenance schedules as shown in the report not equally on a per property basis.

The Tribunal examined the evidence and submissions of the parties. In the opinion of the Tribunal, this case is an aberration from the normal situation under the Act and therefore presents a unique perspective. In the opinion of the Tribunal, while both methods have merit, there is an element of unfairness involved in each of the methods of assessment of the cost of preparing this report that were discussed at the hearing.

The evidence indicates that there are two purposes for this report:

straightening out the assessment schedules for the Zoller Drain and the Zoller Drain Extension to suit the changed conditions, and
bringing the two former municipalities to a common policy on drainage assessment methods.

A number of old reports exist for this work. The schedules of assessment from them would be difficult to apply to maintenance work in the circumstances of changed land uses, land divisions, watershed boundaries, etcetera.

On January 1, 1998, the Village of West Lorne amalgamated with the surrounding Township of Aldborough. In the interest of consistency across the new municipality, policy decisions were undertaken that required the land formerly in West Lorne to be assessed into drains on an individual property basis rather than a block basis.

It is difficult for the Tribunal to determine precisely what part of the $20,000 expense of the report relates to each of these issues. In looking at the assessment schedule, it appears that there are about 209 assessed parcels in the former Township of Aldborough and 657 in the former Village of West Lorne. While it is an approximation only, this does seem to indicate that roughly one-quarter of the assessments (and hence one-quarter of the work on the plans, schedule of assessment and the report as a whole) relates to making the Act work in the former Township of Aldborough while roughly three-quarters of the work on the report relates to converting West Lorne from a block assessment to a system of assessments on individual lots. While this is an approximation, it is supported by the evidence, particularly that of Mayor McPhail, that a major difficulty in the council’s decision on the work related to the question of consistency of application of policy across the new municipality. As well, Mr. McCready, who prepared the report, said that a very large part of the cost of the report was related to preparing detailed drawings and schedules with names and roll numbers so that the maintenance costs could be assessed against individual properties rather than on a block assessment basis as in the past.

The Tribunal has concluded that about one-quarter of the cost of the report relates to making the Drainage Act work in the former Township of Aldborough. That is, this amount would have to be spent to address the first issue and prepare a workable schedule for assessing maintenance work if the assessments in West Lorne were left as a block assessment as per the policies of the former municipalities. This amounts to $5,000. The Tribunal directs that this $5,000 be assessed to the lands and roads in the former Township of Aldborough on a pro rated basis to the column in the report titled, Total Maintenance Assessment, with a minimum assessment of $8.⁰⁰ per parcel.

In the opinion of the Tribunal, the remainder of the cost relates primarily to solving the issue of consistency across the municipality. The Tribunal is of the view that the residents of the former Village of West Lorne should bear some of the responsibility for achieving this consistency. The Tribunal feels that a substantial part of this cost should be born by the amalgamated municipality because, as the Mayor said in his evidence, that is “in the best interests of the newly-amalgamated municipality”.

In attempting to distinguish the burden which should be borne by the residents of the former West Lorne and the Municipality of West Elgin, the Tribunal had regard for the overhead cost of establishing a lot on an assessment schedule. In this case, the cost of placing separate lots on the assessment schedule is about one quarter of the cost of the work on the report, or $5,000. The Tribunal directs that this cost be divided on a per lot basis against the lots in the former Village of West Lorne. Based on the evidence, the Tribunal fixes this cost at $8 per lot.

In the opinion of the Tribunal, the balance of the cost is the responsibility of the amalgamated Municipality of West Elgin. Therefore, the Tribunal assesses the balance of the cost against the roads and streets owned by the Municipality of West Elgin within the watershed of the Zoller Drain and Zoller Drain Extension to be allocated among the roads in proportion to amounts these roads and streets are assessed in the Total Maintenance Assessment Column in the schedule.

In the view of this panel of the Tribunal, the costs to be charged to the roads and streets of the municipality are directly related to the amalgamation of the two former municipalities. There was some discussion during the course of the hearing that transitional or restructuring funding may be available through the Provincial Government. The Tribunal encourages the Municipal Council to consider applying to the Provincial Government for restructuring funding to cover this one time, extraordinary expenditure and encourages the Ministry responsible for administering these funds to consider the request for funding favorably.

In arriving at its decision, the Tribunal notes that Mr. Stewart had his appeal heard as an appeal of one assessed owner. The presentation Mr. Stewart provided was as an “in principle” presentation that affected not only his property but others in the same class - small non-farm lots predominately in the village but, in addition, elsewhere in the drainage area. The Tribunal heard the “in principle” submission and was persuaded it had merit, producing a result that has more general application than for the one individual lot owned by Mr. Stewart.

This is a most unusual situation and the Tribunal sympathizes with the engineer in attempting to find a fair and equitable solution to the problem. The change in the method of assessment is not a criticism of the engineer but an attempt to bring what this panel of the Tribunal sees as fairness to an unusual situation.

ORDER OF THE TRIBUNAL

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

The cost of the report be assessed as follows:

A fixed amount of $5,000.⁰⁰ is to be pro rated to the lands and roads in the former Township of Aldborough shown in the schedule in the January 11, 1999 report titled Total Maintenance Assessment, as modified by the Court of Revision, with the proportion so calculated assessed to each parcel in the former Township of Aldborough identified in the schedule with a minimum assessment of $8.⁰⁰ per lot.
The sum of $8.⁰⁰ per parcel is to be charged to the lands in the former Village of West Lorne.
The balance of the cost of preparing the drainage report is to be assessed to the roads and streets owned by the Municipality of West Elgin within the watershed of the Zoller Drain and Zoller Drain Extension to be allocated among the roads in proportion to amounts these roads and streets are assessed in the Total Maintenance Assessment column of the schedule.

The non-administrative costs of the Township in respect to this appeal shall form part of the cost of the drainage report and 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.

The reason for this decision is that the Tribunal was convinced by the evidence that the proposed assessments were unfair to the class of landowners who had small non-agricultural lots.

Dated at London, Ontario this 29^th day of June, 1999.