Mausoleum Municipal Drain (Re), 2004 ONAFRAAT 10

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email:Tribunal@OMAF.gov.on.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1, chemin Stone Ouest Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email:Tribunal@OMAF.gov.on.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Mausoleum Municipal Drain Municipality of West Perth Mausoleum Municipal Drain (RE) 2004 ONAFRAAT 10

STATUTE: Drainage Act

HEARING: January 27, 2004

DATE OF DECISION: March 15, 2004

2004-10

NEUTRAL CITATION: 2004 ONAFRAAT 10

Mausoleum Municipal Drain Municipality of West Perth

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 Mr. Carl Hillebrecht under Sections 48 and 54 of the Drainage Act from the engineer’s report and from the decision of the Court of Revision on the Mausoleum Municipal Drain in the Municipality of West Perth.

Before: Andrew Osyany, Vice Chair; Yvon Simoneau, Vice Chair

Appearances: John R. Spriet, P. Eng., engineer who prepared the Report Andy McBride, P. Eng. for Carl Hillebrecht, appellant Carl Hillebrecht, appellant Elmer Gordner, Lutheran Church, Cemetery Board John VanBakel, Mayor, Municipality of West Perth

DECISION OF THE TRIBUNAL

This appeal was heard in Mitchell, Ontario on Tuesday, January 27, 2004. Mr. Carl Hillebrecht appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 48 and Section 54 of the Drainage Act (the Act).

Ms. Patricia Taylor, Clerk Administrator, Municipality of West Perth (the Municipality) performed the duties of the Clerk of the Tribunal.

On December 17, 2003, the Tribunal issued an order making all landowners assessed or compensated in the engineer’s report on the Mausoleum Drain (the Report) parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.

Statutory Context

Subsection 54 (1) of the Act states:

Appeal to Tribunal

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. R.S.O. 1990, c. D.17, s. 54 (1).

Subsection 48(1) of the Act states:

Appeal to Tribunal

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. R.S.O. 1990, c. D.17, s. 48 (1).

Preliminary Matters

Mr. Spriet clarified that the Municipality is the owner of both George Street and Willow Lane. He said the Report indicated the Ministry of Transportation – Ontario owned George Street. It was also clarified that the name of the proposed drain was changed from the Hillebrecht Drain to the Mausoleum Drain before the adoption of the Report, and that some earlier prepared documents were labeled Hillebrecht Drain.

The Background

Mr. John R. Spriet, P. Eng. gave a brief overview of the proposed municipal drain. He explained that the original petition for the drainage works was not valid, as there were not enough signatures. He said he prepared a new petition, based on what he understood to be the landowners’ intent and that it was signed by a sufficient number of petitioners. He explained the petition called for improvements to an existing private drain.

Mr. Spriet explained a floor drain in a mausoleum on a property owned by the Lutheran Church and identified by Roll No. 2-174 (the Cemetery property) was connected to a tile drain which he estimated was constructed in the 1920s. He said work was undertaken on the drain in 1997 and 1998, due to flooding of the basement on the property identified by Roll No. 2-197 (Hillebrecht property). He said the exact location of the old drain was not known when the project was initiated and a dowser was used and a test hole dug to try to identify it without success. However, he said a broken water main led to the discovery of one portion of the old drain early in 2003 and a video scope was used to determine the route of a large length of the old drain. The location was verified by pouring dye into the mausoleum’s floor drain and determining that it came out where it was expected.

The drain started on the Cemetery property, crossed George Street, crossed the Hillebrecht property and outlet into a storm sewer on Willow Lane. Mr. Spriet said the Report did not call for any immediate construction on the old drain, but that he proposed that it be made a municipal drain for maintenance purposes.

Mr. Spriet explained that in determining assessments, he assessed costs in the proportion 84% statutory benefit to 16% outlet liability. He said this was because the drain is well below the surface and will drain only subsurface water.

Mr. Spriet stated the Hillebrecht property was receiving most of the benefit of the drainage works, as the market value would be improved by having a municipal drain on the property, as the municipality would be required to ensure it was maintained. He said as an open joint drain, the Mausoleum Drain would provide subsurface drainage to the Hillebrecht property and that 70% of the drain by length is on that property. Mr. Spriet indicated the existing drain worked well as a gravity drain for the Cemetery property, and that there was a sump pump in the mausoleum for emergency backup. He explained he split the benefit charge between these two properties with two-thirds to the Hillebrecht property and one-third to the Cemetery property, after deducting benefit assessments for the two roads in the watershed.

For outlet liability, Mr. Spriet used a run-off factor of 2 on the roads, which he said was lower than usual because the drain was too far below ground to drain surface run-off.

The Issues

The issues before the Tribunal were:

1. Should the Report be referred back to the engineer with the instruction that a Section 40 report be written as the proposed work is not required?

2. Should the location of the Mausoleum Drain on the Hillebrecht property be changed?

3. Should the assessment on the Hillebrecht property in the “Assessment for Incorporation” schedule of the Report be reduced?

4. Should the assessment on the Hillebrecht property in the “Assessment for Maintenance” schedule of the Report be reduced?

The Evidence

Design Issues

Mr. Andy McBride, P. Eng., indicated he had been a drainage engineer for 35 years and was currently with Burnside and Associates. He told the Tribunal the basement of the house on the Hillebrecht property had been flooded on occasion as the result of the private drain proposed to be incorporated as a municipal drain in the Report. He said the real problem to be addressed was the need for a legal outlet for drainage from the Cemetery property.

Mr. McBride said the existing private drain was over 80 years old, had caused problems in the past and ran through the middle of the Hillebrecht property, skirting the foundation of the house. He said it was not the best solution to drain the mausoleum floor.

Mr. McBride suggested the following options be considered:

• Abandoning the old drain that is the subject of the Report and draining the mausoleum floor through an existing 8-10” tile which runs North from the mausoleum, then Easterly. This was suggested in 1999 by Johnson Engineering Consultants.

• Connecting the mausoleum floor drain to a municipal sanitary sewer on St. George Street, which is located 1 m below the basement floor of mausoleum.

• Building a dry well on the Cemetery property and connecting the mausoleum floor drain to the dry well.

• Pumping the mausoleum floor to the surface of the ground with a sump pump.

Mr. McBride said the Ontario Building Code required floor drains to be connected to a sanitary sewer. He said any of his options was more practical than the solution contained in the Report.

Mr. McBride said he did not take elevation measurements of the site and did not verify the existence of the 8-10 inch tile. He noted it had been shown as a 6-inch tile on one of the exhibits. He said the land looked like it sloped in the direction of that tile drain.

Mr. McBride also indicated:

• He was concerned with the stability of the old drain, as he understood corrugated tubing had been installed at significant depth. He thought there could be future maintenance problems, as he was aware of several instances where this type of material failed when installed in ditches.

• The quality of the video of a tiled portion of the old drain did not give him confidence that the old drain was in reasonable condition.

• He could not recommend a municipality taking over a drain that is 80 years old.

• A dry well would not be effective if the water table was high; he did not know the location of the water table.

Mr. Carl Hillebrecht stated he had had problems with water in his under-floor heating system since he purchased his property in 1985. He said he had installed his own drains around his building in the late 1990s when the Municipality was fixing the old drain. He explained that his tiles, which were perforated, were in the same trench as the old drain, which was solid. He expressed concern with the materials used by the Municipality as he said their 6-inch tubing was not designed to be installed at the depth it was, and was not packed with stone. He acknowledged there had been no problems with water in his basement since the latest work was undertaken on the drain in 1998.

Mr. Spriet told the Tribunal that Mitchell has a lagoon system and the Municipality did not allow extra water to be drained into their sanitary sewers. He said it was also not possible to connect to a storm sewer in front of the Cemetery property, as the elevations did not allow it.

Mr. Spriet said the current drain had a 2% slope from St. George Street to Willow Lane and was 2.1 metres deep. He explained to get a similar slope along the route identified by Johnson Engineering would require the drain to be 4 metres deep and that it was not realistic to drain the mausoleum in that direction. He also said he believed that there was an error in the Johnson report and that the pipe in that location was 6-inch pipe. Mr. Spriet said an additional complication was the presence of houses, garages and mature trees along that proposed route.

With regard to the concern raised about the 6-inch corrugated tubing installed in 1998, Mr. Spriet said that for the most part it was installed at a depth of 1.7 metres. He said that while it may not be designed to be installed at that depth, the evidence was that it was functioning well.

Mr. Spriet said he did not believe he required a certificate of approval from the Ministry of the Environment to incorporate an existing drain. He said he did not deal with the building code but that since there was no water use in the mausoleum, he did not anticipate any difficulty connecting the floor drain to the storm sewer. Mr. Spriet said he had not seen a footing drain around the mausoleum but would be surprised if one did not exist.

Mr. Spriet told the Tribunal he was present when the video of the old drain was made. He said water covered the lens at times but the general quality of the video was sufficient for him to determine there was no dirt in the drain, no evident cracks and no side connections. He said it looked to be of a reasonable grade and a uniform grade and water could be seen flowing in the drain. The video was shown at the hearing.

Mr. Spriet said he had no qualms about recommending the Municipality take responsibility for the drain. He said there was no other alternative that would not be significantly more expensive.

Mr. Spriet also indicated:

• He did not survey the Johnson route but he had the elevations at the mausoleum and at St. Andrew’s Street.

• He was not sure that a drain would not work in this location but was sure a drain with the same capacity would not work on the Johnson route.

• If he were to build a new drain he would likely route it along the Southern edge of the Hillebrecht property.

• The old drain in question pre-dated the mausoleum, which was built in 1956. It also pre-dated the graves.

• The existing drain was approximately 21 inches in diameter.

• There is a private drain connection to the storm sewer at the outlet of the drain.

• The mausoleum is on a high point in the Cemetery property. Water pumped to the surface could flow to the East or the West.

• He would not advise digging a dry well on the Cemetery property.

• He provided an allowance for right-of-way calculated at a rate of $40,000 per hectare. That was five times the rate he used for rural right-of-way allowances.

• If the drain were blocked, the Cemetery property would not need a legal outlet as the mausoleum could be drained with a sump pump.

• Surface water cannot enter the drain.

• Construction costs alone would be approximately $18,000 if the old drain were to be replaced by a newly constructed drain.

• The quality of water in the drain was not tested, but it looked clear.

Mr. Elmer Gordner testified that the tile that ran along the Johnson route was a 6-inch cement drain that was installed under a gentlemen’s agreement in the mid-1980s. He said there were no fences along that route but there was a row of spruce trees. He said there was only a small amount of fall on the drain.

Mr. Gordner said the Cemetery Board preferred a gravity drain as the mausoleum was not visited every day so there was no one to turn on a sump pump. He said there was only 3-4 inches of clearance between the floor and the coffins. He said the Cemetery property needed the proposed Mausoleum drain. He understood the property could not be hooked to the sanitary sewer.

John VanBakel, Mayor of the Municipality, said a by-law prohibited the connection of footing drains to sanitary sewers. He said the Municipality had repaired the private drain in 1997 and 1998 and that he understood it was functioning well. He said Mr. Hillebrecht was concerned about future liability issues, not drainage.

Mr. McBride informed the Tribunal that a municipal by-law would prevent Mr. Hillebrecht from placing buildings within five metres of either side of the proposed Mausoleum Drain.

Assessment Issues

Mr. McBride said the Hillebrecht property had no natural drainage problems and the basement flooding was the result of water carried onto the property through the old drain. He said that if the old drain were to be incorporated as a municipal drain, the majority of the assessment should be to the upstream lands. He suggested most of the assessment should be on the basis of outlet, not benefit.

Mr. Spriet said the purpose of the Report was to incorporate and/or partially reconstruct the existing drain. He explained that was what he understood Mr. Hillebrecht wanted and that the Cemetery Board of the Lutheran Church had signed the petition to allow him to go upstream. He stated that Mr. Hillebrecht knew that as a major landowner he would be assessed a significant portion of the cost, and that he had previously indicated he was willing to pay. He argued that this was not an outlet situation, it was a matter of market value. He said the market value of the Cemetery property would not change, but that the Hillebrecht property would re-gain market value through the resolution of the drainage problem.

With regard to the maintenance schedule, Mr. Spriet said that traditionally road authorities are given a break but that in this case the road authority would pay the cost of repair if the drain failed under the roads. He said that was the most likely place for a drain to fail.

Mr. Gordner said the Cemetery Board had landscaped the Hillebrecht property after the private drain was repaired in 1998.

Summation

Mr. McBride suggested that the Tribunal determine that the Mausoleum Drain is not practical and order the Cemetery property to be drained through a different route. He said Mr. Hillebrecht did not want the drain on his property at all and there were other options that would give the Cemetery Board a gravity drain from the mausoleum floor. He argued the most appropriate option would be to hook it into the sanitary sewer as it would be inexpensive and as there was a possibility the drain could carry polluted water.

Mr. McBride argued that the private drain should not be incorporated as a municipal drain, as some of the materials used in its construction were questionable. He submitted the costs of the Report should be paid by the Municipality and the engineer, Spriet Associates, and that the cost of a Section 40 report should be assessed to the Cemetery property.

In the alternative, if the project were to proceed, Mr. McBride argued that the allowances provided to the Hillebrecht property for right-of-way were too low. He also submitted the assessments were reversed and the upstream property should pay more than the downstream property. Mr. Spriet acknowledged the landowners had worked cooperatively in the past and said Mr. Hillebrecht was willing to contribute financially to a good solution.

Mr. Spriet pointed out that the water problems on the Hillebrecht property were longstanding and that Mr. Hillebrecht had initially been agreeable with the option contained in the Report. He stated he had an obligation to consider the needs of both the Hillebrecht property and the Cemetery property. Mr. Spriet submitted that incorporating the existing drain as a municipal drain, as recommended in the Report was the only practical solution for all parties.

Mr. Spriet said he had spent two years on this project, and believed the private drain was functioning adequately. He said there was no hope of draining the mausoleum floor drain to the East along the Johnson route and that a municipal by-law prohibited the connection of footing drains to the sanitary sewer.

Mr. Spriet said his assessments were fair, as the Cemetery property did not need the drain, and the Hillebrecht property would benefit from it.

Mr. Spriet said he was not proposing any cost order other than whatever the Tribunal thinks is appropriate, but noted that if a petition is withdrawn the petitioners pay the costs incurred to that date.

The Findings

The Tribunal is of the view that a municipal drain is required to address the water problems on the Cemetery property. The evidence was clear that the private drain had been used for several decades to provide drainage to the Cemetery property, and to the mausoleum itself since its construction in 1956. The drain failed, creating water problems on the Hillebrecht property. Notwithstanding that repairs were undertaken to the private drain in the 1990’s, and that it appears to be functioning at present, the situation is unstable as there is currently no mechanism to effect repairs and no guarantee that the drain will not be blocked off in the future by a landowner.

Mr. Gordner testified that the Cemetery Board preferred a gravity drain, and the Tribunal finds that draining the water through the Hillebrecht property would best provide that service. The evidence of Mr. Spriet persuaded the Tribunal that the alternate route to the East proposed by Mr. McBride (the Johnson route) was less desirable. The undisputed evidence is that the slope of the land is steeper along the route of the private drain and that there are obstacles to a drain along the Johnson route. Also, the Tribunal gave greater weight to Mr. Spriet’s testimony as he was appointed to independently assess the drainage options, whereas Mr. McBride represented the interests of one landowner.

The Tribunal accepts Mr. McBride’s assessment that draining the mausoleum to a municipal sanitary sewer would be technically possible. It is also clear from the evidence of Mr. Spriet and Mr. VanBakel was that this was prohibited by a municipal by-law if the drain is a footing drain. However, floor drains are required by the Building Code to be connected to a sanitary sewer. The Tribunal cannot override that municipal by-law, and the status of the drain from the Mausoleum was never clarified, so that this panel is unable to determine whether this is a footing drain or a floor drain

The Tribunal was not persuaded that it was necessary to order a pumping system to drain the mausoleum. It sits on high ground and there is a more practical, gravity-based solution available.

The Tribunal is concerned with the condition of the private drain. The undisputed evidence was that the repairs were made with materials which are not appropriate for a deep subsurface drain. As well, while the Tribunal accepts the testimony that the older section of the drain is still functional, there is no evidence that it is designed to meet current standards outlined in provincial guidelines. On balance, the Tribunal was not convinced that it is prudent to incorporate a private drain of this age and condition as a municipal drain.

The Tribunal recognizes that it will be expensive to reconstruct the private drain to bring it up to recommended provincial standards. Mr. Spriet testified that the construction costs alone would be approximately $18,000. However, this must be weighed against the potential for substantial maintenance costs on the Mausoleum Drain when the private drain system ultimately fails. The Tribunal finds that it is preferable to properly design and construct the drain at the outset, rather than deal with problems on a piecemeal basis as they occur.

The Tribunal will order the Report to be sent back to the engineer with the direction that there be a determination as to the status of the drain on the Mausoleum property. In the event that it can be connected to the sanitary sewer, then that is what should be done. (This is referred to as Alternative “A”). In the case of Alternative “A”, the engineer may find, pursuant to the provisions of s. 40 of the Act, that there is no need for a report.

In the event that the existing drain cannot be connected to the sanitary sewer, then the Mausoleum will need an outlet through the present Hillebrecht property. (This is referred to as Alternative “B”).

In the case of Alternative “B”, the Tribunal is satisfied that the existing drain is satisfactory for the crossing under St. George Street, but the engineer needs to provide specifications for the future maintenance and repair of the drain for the crossing under St. George Street. Upstream, to the extent that the drain is to be a municipal drain, the drain needs to be redesigned and reconstructed. Downstream from the crossing the drain needs to be redesigned. The engineer is to lay out the routes in consultation with the affected landowners. Because of various setback requirements, on the present Hillebrecht property, the drain is to be located along the side boundary of the property to the extent it is reasonably possible to do so.

On the question of assessments, the Tribunal makes the following findings:

The process has been more extensive than usual and this has been occasioned by the positions adopted by Mr. Hillebrecht. His property has also received benefits from the municipality and the owners of the Cemetery property in regard to the construction of drainage works that are to the advantage of his property, all of which will have an impact on the financial consequences associated with this project. It is appropriate that there should be a special benefit assessment in the amount of $2,000 to the Hillebrecht property.

In the event that Alternative “A” is adopted and the engineer files a s. 40 report, the engineer still has to deal with the costs, and the direction of this panel is that the costs should be distributed as directed in this decision, as if Alternative “B” were adopted. In the event of a revised report calling for a municipal drain, incorporating Alternative “A”, the costs to date (including the special benefit assessment to the Hillebrecht property) shall be distributed as if Alternative “B” had been adopted.

In the event that Alternative “B” is adopted, this panel finds that the cost of the project should be assessed in the ratio of 80% statutory benefit to 20% outlet liability. The Tribunal agrees with Mr. Spriet that this is primarily a benefit drain. However, the Tribunal finds that the key benefit is to the Cemetery property as it is provided a legal outlet. The evidence is that the Hillebrecht property does not require drainage, except for the removal of water that enters the property through the private drain. The Tribunal finds that the statutory benefit, net of the statutory benefit assessed to the roads, should be distributed with 75% of the costs to the Cemetery property and 25% of the costs to the Hillebrecht property. The maintenance schedule should be in proportion to the total assessment (statutory benefit and outlet liability) on the construction assessment schedule, taking into account, of course, the road authority’s obligations under s. 26 of the Drainage Act.

With regard to allowances, the Tribunal is not ordering any changes but the engineer should reconsider the allowances when the Report is re-written. The Tribunal agrees with Mr. McBride that the Municipality’s zoning by-law prevents the construction of buildings, structures and swimming pools within 5 metres of the proposed Mausoleum Drain. It was not clear whether or not the engineer took that into account when he prepared the Report. The Tribunal notes that there may be building restrictions that are not related to the presence of a municipal drain in the new location ordered for the drain.

The panel wishes to thank both drainage engineers for the thorough and professional way they have dealt with the problems on this project. The panel found their evidence very helpful. The panel also wishes to note that Mr. Spriet obviously has not charged the project for all his time, and that this shows a generosity that reflects very well on the profession in general and Mr. Spriet in particular. The panel has considered making a deserved cost award to Mr. McBride for his contribution to the resolution of the problems on this project and decided against it only because, the panel believes that Mr. Hillebrecht should have brought in Mr. McBride at an earlier stage, which would have resulted in savings to the project.

ORDER OF THE TRIBUNAL

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

1. The appeals of Carl Hillebrecht under Sections 48 and 54 of the Drainage Act are allowed in part.

2. The Council of the Municipality of West Perth is directed to refer the report on the Mausoleum Drain back to the engineer for reconsideration of the project and in particular to determine whether the existing private drain can be connected to the municipal sanitary sewer on St. George Street. In the event that it can, the drain is to be so connected (Alternative “A”). This may result in the engineer filing a report, pursuant to s. 40 of the Act that a municipal drain is not required. The s. 40 report shall distribute the costs as if Alternative “B” had been adopted. If the engineer determines that a revised report is required for a municipal drain, incorporating Alternative “A”, the costs to date (including the special benefit assessment to the Hillebrecht property) shall be distributed as if Alternative “B” had been adopted.

3. In the event the existing private drain cannot be connected to the municipal sanitary sewer or St. George Street (Alternative “B”), a) The engineer is to provide specifications for the future maintenance and repair of the drain at the crossing under St. George Street. b) The engineer is to design the drain upstream and downstream of the St. George Street crossing to current provincial standards. The route of the drain is to be determined in consultation with the affected landowners. On the Hillebrecht property, the route of the drain should be as close to the property line as practicable, preferably within 3 metres.

c) The Hillebrecht property is to receive a special benefit assessment of $2,000.

d) The overall proportion of statutory benefit to outlet liability on the Mausoleum Drain shall be 80:20. e) After deducting the special benefit assessment to the Hillebrecht property and the statutory benefit assessments to the road authorities, the proportion of statutory benefit assessed to the Cemetery property and the Hillebrecht property shall be 75:25. f) Apart from giving effect to the provisions in the Drainage Act, s. 26, the assessment for Maintenance Schedule shall be in the same proportion as the total assessments to each property in the Assessment for Construction schedule in the revised report.

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

Dated at Shelburne, Ontario this 15th day of March, 2004.