Oil Mill Creek Municipal Drain (Re), 2000 ONAFRAAT 30

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:

Oil Mill Creek Municipal Drain City of Port Colborne

Oil Mill Creek Municipal Drain (RE) 2000 ONAFRAAT 30

STATUTE:

Drainage Act

HEARING:

September 20, 2000

DATE OF DECISION:

November 16, 2000

2000-30

NEUTRAL CITATION:

2000 ONAFRAAT 30

Oil Mill Creek Municipal Drain City of Port Colborne

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 Agriculture, Food and Rural Affairs Appeal Tribunal by Bernard Fallon, Gerald Maslona, Robert Hay, David Hay, Edward S. Kaj, John DeFranks, Cynthia DeFranks, John Sloan, Mary W. Gutai, Doris Baker, John Y. Sloan, Cheryl Cox, Emo Kessler, Elizabeth O’Conner, Dea McAulliff and others under Section 48 and 54 of the Drainage Act from the report of the engineer on the Oil Mill Creek Municipal Drain, Municipality of the City of Port Colborne.

HEARING DATE: September 20, 2000

Before:

John Taylor Vice-Chair, Jack Young Vice-Chair, Anna Andres and Russell Piper Members.

Appearances:

Numerous appellants and others.

John Kuntze, P. Eng., of the firm of K. Smart Associates Limited.

Rene Landry, Port Colborne Drainage Superintendent.

PRELIMINARY MATTERS

Background

This appeal was heard at City Hall in the City of Port Colborne on September 20, 2000. The appeal relates to a report prepared by K. Smart Associates Limited dated January 31, 2000. This report was requisitioned by the City Drainage Superintendent on the instructions of City Council pursuant to Section 78 of the Drainage Act, which empowers a Municipality of its own initiative to require a report if the Municipality believes that improvements are required to a drainage work for its better use and maintenance. The city further requisitioned the engineer to prepare new assessment schedules for future maintenance of the drain given the large increase in the number of individual property owners in the watershed as a result of the division of various properties over the years. The city felt that it was hindered in initiating maintenance projects on the Oil Mill Creek Drain because of the lack of an appropriate system for determining the apportionment of the cost of maintenance and repair, among the various property owners within the drainage area.

The engineer reviewed the historical records relating to this drainage scheme and it seems that as far back at 1888 drainage reports were prepared and adopted by council that implemented drainage works within this drainage scheme.

The drainage scheme is located in what was formerly Humberstone Township. It lies immediately north of the shore of Lake Erie and it extends in a northerly direction to its upper limit at the south side of Regional Road Number 5 and Kings Highway # 3. Various reports over the years created a main drain into which several branches were developed. As is well known the north shore of Lake Erie in this area has a natural sand ridge. At some point in this sand ridge the outlet for the Oil Mill Creek Drain has to penetrate through the sand ridge to provide an outlet into Lake Erie. As far as the records indicated, this outlet penetrates the sand ridge at a point just westerly of Cedar Bay Road and through the properties now owned by H. & C. Moore and S. & A. Turley.

The natural forces on Lake Erie cause the sands along the lakeshore to shift and in most years would have blocked off the outlet for this drain. In 1916 a report was adopted by council and a substantial outlet culvert (beach culvert) was constructed extending from the shore of the lake through sand ridge, this covered outlet still remains in place and seems to be still functional. Over the years improvements were made to include a “C” curved shaped concrete dyke that was intended to prevent sand from blocking the end of the culvert. There was also a gate installed at the outlet end of the culvert that would hopefully prevent the rush of water from the lake back into the drainage system. Moreover at a later date the Municipality put in a small pump at the inlet part of this culvert in order to reduce the height of the water upstream of the culvert in years when the gate flap had to be closed due to high waters on the lake. All of these improvements will remain in place and the present report under consideration does not purport to make any changes to the system at that location.

The report proposes to deal with an open section of the drain leading from the inlet of the aforesaid concrete beach culvert upstream some 61 meters to the south face of a bridge on the Vimy Road which crosses the drain. For the most part, except for road crossings and access bridges, the Oil Mill Creek Drain is an open drain upstream from the beach culvert. This report deals only with the closing in of that short section of 61 meters between the Vimy Road Bridge and the beach culvert under the sand ridge, with a new culvert.

The engineer testified that the outlet or beach culvert is approximately 6’ by 4’ and the proposed covered pipe for the 61 meters will also be of similar size and capacity. The proposed style of pipe will be a steel smooth surface interior called Ultraflow. The works provide for the realignment of this pipe in the ditch so that it would only have one bend between the bridge and the lake. The pipe will be covered with earth brought onto the site and the surface seeded. The end result will be that the yards of the Moore and Turley properties will no longer have an open ditch in them but rather the underground pipe will have no visibility whatsoever. In particular the Moore property will be changed entirely. Currently the Moore residence overlooks the open drain when looking toward the lake with the drain completely occupying the rear yard as well as the only frontage that the Moore lot has on the lake.

Except for this proposed work south of the Vimy Road Bridge, the report contemplates no other works or improvements or repairs upstream of the bridge. The total work proposed including administration and engineering is anticipated to cost $72,000.00. Included in this works is approximately $1,400.00 allowances to the property owners on which the works will be carried out.

The major problem facing the engineer was apportioning out the cost of the project to all those property owners within the drainage system. He firstly had to decide what apportionment would be assessed as outlet liability and the portion to be assessed as benefit. Notwithstanding how fair he thought he was being, the results of the engineers’ apportionment has raised the greatest number of appeals to this report. The methods used by the engineer will be dealt with later in these reasons.

NATURE OF APPEALS

Fifteen landowners filed appeals. The bulk of these appeals related to the assessments but some landowners were appealing against the report. The thrust of these complaints can be categorized as follows:

1. Some appellants submit that the works proposed are not necessary. They believe that the drain has operated very well for several decades and that the section below the Vimy Road Bridge which is proposed to be enclosed in the pipe, is more than adequate to handle the volume of water that enters the drain. They claim that there is no evidence of deterioration of the walls of the open drain and that the proposed pipe will not increase the flows. These appellants see the city’s concern of possible cave in of these walls as being more imagined than real.

2. A number of the other appellants claim that the report does not go far enough. These appellants find that water accumulates upstream of the Vimy Road Bridge and that the open ditch in front of the homes built along the lots north of the Vimy Road has widened over the years. A number of these homes have footbridges over the drain leading from the road to their cottages, some of these bridges have been washed out and have had to be replaced from time to time. Some owners in fact have, of their own accord, put in culverts which if completed would lessen the capacity of the drain. They submit that the report should have done something about cleaning this portion of the drain so that the water levels would be lower.

3. The bulk of the appeals are against the assessments. Most of these appellants had also appealed to the court of revision and were dissatisfied with the results at that court. The majority of these appellants own property on either side of the Vimy Road going west from the Vimy Road Bridge. There were few appellants that own properties on the drain branches.

A group of these appellants (The Sand Ridge Group) banded together and made a very extensive common presentation in support of their appeals. The Tribunal was very impressed with the work that went behind this presentation, and congratulates these appellants for this fine presentation and the fact that it consolidated the various points of view of the appellants.

To understand the direction of the appeal, it first necessary to set out the approach adopted by the engineer in distributing the assessments. The primary step taken was to make a determination of what portion of the cost of the proposed works should be assessed for outlet liability and for benefit. Since the work is at the very outlet of the drain then all property owners within the water shed were targeted for some form of assessment. It was the engineer’s determination that 67% of the total cost should be recovered as outlet liability and the remaining 33% being recovered from properties receiving an ordinary or special benefit. The engineer opined that strict allocation of the 67% of outlet liability to the upstream lands on an area basis would bring to bear an unreasonably disproportionate share on large parcels such as farmland parcels. The engineer pointed out that over the years the number of individual parcels in the watershed grew from 15 properties in 1916, to 144 properties in 1961 and to 236 properties in the year 2000, the current report. To bring more fairness and justice among the properties contributing to outlet liability Mr. Kuntze determined that one-half of the total outlet liability assessment should be recovered on a per parcel or per lot basis. Accordingly he proceeded to assess $100.00 to each parcel assessed in the watershed which would have raised one-half of the outlet liability. The remaining one-half he assessed on a property area basis or the usual method of allocating outlet liability.

The next step was to apportion the benefit assessment which in the aggregate was to total 33% of the total cost of the project or $23,300.00. The engineer submitted that the proposed works in covering up the open ditch downstream of the Vimy Road Bridge was going to be a benefit not only to the properties fronting on this ditch but as well as some of the properties upstream of the bridge in the immediate vicinity of the proposed works. Accordingly he apportioned $7,600.00 of the total cost among 38 nearby properties at a rate of $200.00 each. The remainder of the benefit liability was apportioned among the Vimy Road itself ($9,000.00) and the remaining $6,700.00 to the four (4) lots or properties that were immediately adjacent to the works.

While there was not much opposition to the concept of assessing a $100.00 levy to all parcels in the watershed, there was substantial objection to the following two approaches;

1. The $200.00 benefit assessment of the 38 lots, and

2. The assessment of only $6,700.00 to the properties which immediately abutted the new works.

The Sand Ridge Group focused their opposition on the apportionment of the benefit assessments. The gist of their arguments can be summarized as follows:

1. Houses built on the top of the sand ridge contributed little or no water that ended up in the Oil Mill Creek Drain. They submit that the sand ridge absorbs most of the rainfall and discharges it directly into Lake Erie. They point out that below the sand dunes or ridges there is a strata of rock which is tilted toward the lake so that water percolating through the sand is directed toward the lake rather than to the drain.

2. They complain that the engineer’s belief that the 38 properties nearby the works receive some benefit more than the upstream properties is without foundation. They further submit that such an approach made by the engineer in this case has no basis in the Drainage Act and there is not precedent set for the same by either the tribunal or the referee’s court.

3. They further submit that the engineer has greatly understated the direct benefit or special benefit that the four (4) properties abutting the proposed works will achieve. Particularly in the case of the Moore property through which the bulk of the pipe will be constructed, will derive a direct benefit that will greatly enhance the value of that property. They submit that more if not all of the cost of the project should be downloaded on the Moore property or it and the other properties abutting on the works.

The Court of Revision had previously heard the assessment appeals. The only relief granted by the Court of Revision was to add a number of properties to the east of the proposed works and east of Cedar Bay Road called “The Walnut Park” properties. In fact these properties were not in the watershed as the contours and elevations of the land at the edge of the water shed seem to make it impossible for meteoric water to find it’s way into the Oil Mill Creek Drain. On advice from the engineer, the Court of Revision felt justified in including these properties because access to them was gained by the roads within the water shed, therefore an indirect benefit to the Walnut Park properties was to be derived by having a well maintained and operational water shed. It seems that the Walnut Park properties are not in any other nearby watershed and should be deemed to be included in this scheme. No one appeared before the Tribunal owning or representing any property owner in the area considered to be the Walnut Park properties.

Mr. Bernard Fallon, a property owner whose principal residence is built on the sand ridge along Lake Erie and extends northerly near the west branch of the Oil Mill Creek Drain also filed appeals. It was his submission that none of the waters on his properties ever reached this drain and therefore he should be excluded.

Ms. Cheryl Cox, a property owner on the East Side of Cedar Bay Road and north of the Walnut Park properties whose lands lie entirely in the watershed, also complained on two grounds. Firstly: That she was assessed for two properties while she really only owned one. The reason for the separate assessments is the fact that she wishes to keep her two lots separate for Planning Act purposes so that the properties would not merge and be treated as one property. Her second objection was the fact that there were not good flows in the East Branch of the Oil Mill Creek Drain and that water ponded on neighbouring properties. She felt that the works should be extended. Finally Mrs. Cox submitted that maintenance and improvements should be conducted throughout the drainage system which would result in a more informed assessment on the exact volumes of water that the Oil Mill Creek Drain generates. She fears that the sizing of the proposed closed culvert may not be adequate to handle all of the waters generated by the watershed.

Another appellant was Ms. Dea McAuliffe who owns a property at 2862 Vimy Road. Her complaint was that the section of the drain that flows in front of her property has water lying in it at all times and some work should be done so that the outlet can either be cleaned or lowered so less water would be left to accumulate. She also complains about the fact that she was one of the 38 properties targeted for the special $200.00 assessment.

While all appellants have not been specifically identified in these reasons, we nevertheless feel that the points of view that have been expressed by those who spoke and in particular by the submissions made by The Sand Ridge Group, fairly represent views and objections of all the appellants.

Response by Engineer

The engineer called Mr. Rene Landry, the City of Port Colborne Drainage Superintendent to address some of the concerns raised by the appellants. Mr. Landry is a certified Survey and Engineer’s technician since the 1980’s since his employ with the City of Port Colborne, some 10 years. He pointed out that the city has done maintenance up and down the drain as best it could. A lot of this included unplugging sand at the outlet gate at the shore of Lake Erie. One of his complaints was of the state of the assessment schedules from the past engineers’ reports which were inadequate to allocate maintenance costs out to the appropriate properties within the watershed. His concern and the concern of council was that the state of the walls lining the outlet of the Oil Mill Creek Drain below the Vimy Road Bridge seem precipitous and fragile. The city felt that since it has an obligation under the Drainage Act to maintain drains in a good state of repair, it could not justify ignoring this apparent fragility. If one of these walls were to collapse at the time of a large storm event, the drain outlet would become blocked and the upstream properties would be flooded. Moreover access to the open drain into the backyard of properties where it is located made it extremely difficult for heavy equipment to gain access to the drain on an emergency basis. For those and other reasons Council felt that this section of the drain should be closed in, to avoid the apparent shortcomings of this section. Mr. Landry concluded that the new pipe and the proposed depth would be more than adequate to handle the volumes generated by the watershed, even in the case where all upstream branches were properly improved and maintained.

Mr. Kuntze gave further evidence that he shared the same concerns as the drainage superindentant and council. He suggested that the Municipality could well be found negligent if the walls in this section of the open drain were to collapse. He confirmed that the covered pipe its size and its depth of placement are adequate for this system. He noted that none of the past reports ever questioned the size of the outlet pipe put in through the sand ridge in 1916.

With respect to his approach to allocating the assessments, Mr. Kuntze admitted that the $200.00 assessment to the 38 properties was a little unusual. He could not make reference to other drainage reports where that concept was introduced, he admitted that his arguments supporting the same were weak. However he suggested that if the Tribunal were to vary that section of his report that it should not download the cost which that special assessment was designed to cover to the Moore property or the other adjacent properties to the works. He did feel strongly however, that the $100.00 assessment for each parcel in the drainage scheme was justified and there was precedent for it. He felt that despite the fact that agricultural properties were eligible for a 1/3 grant from the Province, they should not bear an extra burden because the nature of the present works was not to give them any more benefit than any other parcel in the drainage scheme. Moreover he justified the nominal parcel assessment against the Walnut Park properties despite the fact that it did not appear that any waters generated on such properties actually flowed into the system.

DECISION OF THE TRIBUNAL

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

1. The City of Port Colborne has raised proper concerns about the fragile nature of the walls that line banks of the Oil Mill Creek Drain below the Vimy Road Bridge.

2. Procurement of an engineers report pursuant to Section 78 of the Drainage Act was a proper exercise by the Municipality of its powers under the Act.

3. That all parcels of property in the drainage scheme or watershed have a responsibility to make a contribution to the proposed works.

4. That the levy of $100.00 per parcel on all parcels in the drainage scheme is appropriate.

5. The inclusion of the Walnut Park properties as contributors to these improvements is justified.

6. The special levy of $200.00 to the 38 properties on the sand ridge is not justified.

7. The benefit assessment to the Clemency, Turley, Kitney and Moore properties (Roll numbers 040-00232800, 040-00232900, 040-00233000 and 040-00233100 respectively) has been under valued.

8. The Schedule of assessments both for construction and for future maintenance will require alteration.

ORDER OF THE TRIBUNAL

This Tribunal makes the following order with respect to the Engineers report concerning the Oil Mill Creek Drain dated January 31, 2000, and the decision of the Court of Revision:

1. The engineers report and recommendations with respect to the scope of work is approved.

2. The $200.00 benefit assessment made against the 38 properties on the sand ridge (Roll Numbers 040-00229500 to 040-00233100 inclusive and Vimy Road) as identified in the Appendix “A” hereto shall be deleted, and the $7,600.00 of the cost of the project affected thereby shall be reallocated as set out below.

3. All parcels in the watershed shall be assigned a further $10.00 per parcel benefit assessment over the present benefit assessment as shown in the May 10 Court of Revision Schedule A (Schedule of Assessment for Construction), thereby raising $2,640.00 of the cost mentioned in the previous paragraph.

4. The benefit assessment for the four (4) following properties shall be increased in the following amounts: Roll No. Owner Amount 040-00232800 C. & C. Clemency $500.00 040-00232900 S. & A. Turley $1350.00 040-00233000 L. Kitney $400.00 040-00233100 H. & C. Moore $2710.00 $4960.00 A summary of the total assessment to these properties is set out in Appendix B attached hereto.

5. That Schedule B of the Engineer’s Report, being the Schedule of Assessment for Future Maintenance, as revised by the Court of Revision on May 10, 2000, be further revised so that each of the properties identified in Appendix A of this decision (Roll Numbers 040-00229500 to 040-00233100 inclusive and Vimy Road) shall have the benefit of a $200.00 reduction, and that the total of the assessments be adjusted accordingly.

6. That before the final passing of the By-Law, the engineer is to prepare revised Schedules of Assessment as may be required as a result of the foregoing orders. The same shall be appended to the By-Law implementing the report and this decision.

7. That except as allowed or noted herein, all other appeals made pursuant to the Drainage Act are dismissed.

8. That the non-administrative cost of the City of Port Colborne with respect to this appeal shall form part of the cost of the drainage works and there shall be no other order as to cost. And all parties shall be responsible for their own cost.

Dated at Tilbury, Ontario on this 16^th^ day of November, 2000.

APPENDIX “A”

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

OIL MILL CREEK DRAIN

Properties for $200.00 Reduction(Order #2)

Roll Number Owner

040-00229500 D. Vesper

040-00229600 H. & E. Vesper

040-00229700 T. Marriott

040-00229800 T. Marriott

040-00229900 H. & C. Moore

040-00230000 Winkley, Schultz & Sherk

040-00230100 F. & T. Jance

040-00230200 M. Brady

040-00230300 Vimy Ridge Corp.

040-00230400 R. Garant

040-00230500 C. & D. McAuliffe

040-00230600 T. Scime

040-00230700 McAuliffe, Scime & Nieman

040-00230800 C. Reid

040-00230900 E. & L. Norman

040-00231000 C. Borowiak

040-00231100 R. & K. Wilson, W. Canavan

040-00231200 PJDB Properties Inc.

040-00231300 C. Rusk

040-00231400 J. & C. Stoklosa

040-00231500 R. & J. Hay

040-00231600 G. Wilkes

040-00231700 J. Postlethwaite

040-00231800 R. Traquair

040-00231900 L. Staples

040-00232000 R. Woodworth

040-00232100 J. & C. Sloan

040-00232200 J. & C. DeFranks

040-00232300 G. & C. Maslona

040-00232400 E. & D. Kaj

040-00232500 D. Baker

040-00232600 Vimy RidgeCorp.

040-00232700 P. & E. Meyer

040-00232800 C. & C. Clemency

040-00232900 S. & A. Turley

040-00233000 L. Kitney

040-00233100 H. & C. Moore

---- Vimy Road

APPENDIX “B”

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

OIL MILL CREEK DRAIN

Specific Revision Ordered by Tribunal (Orders #2, 3, 4)

Summary of Benefit Assessments

Owner

C. & C. Clemency

S. & A. Turley

L. Kitney

H. & C. Moore

Total

Roll No.

040-00232800

040-00232900

040-00233000

040-00233100

May 10/00 Benefit Assessment (C.O.R.*)

$790.00

$2,290.00

$490.00

$4,290.00

$7,860.00

Reduction in Assessment (Order #2)

($200.00)

($200.00)

($200.00)

($200.00)

($800.00)

Increase in Assessment (Order #3)

$10.00

$10.00

$10.00

$10.00

$40.00

Increase in Benefit Assessment (Order #4)

$500.00

$1,350.00

$400.00

$2,710.00

$4,960.00

Revised Benefit Assessment

$1,100.00

$3,450.00

$700.00

$6,810.00

$12,060.00

• Court of Revision