Crossroads Alliance Church v. Council of the Township of Zorra, 2005 ONAFRAAT 11

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

APPEAL: Crossroads Alliance Church Drain Council of the Township of Zorra Crossroads Alliance Church Drain (RE) 2005 ONAFRAAT 11

STATUTE: Drainage Act HEARING: March 23, 2005 DATE OF DECISION: May 12, 2005 2005-11 NEUTRAL CITATION: 2005 ONAFRAAT 11

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 Crossroads Alliance Church, Thamesford, Ontario under Section 5 of the Drainage Act from the decision of the Council of the Township of Zorra not to proceed with a drainage works for which the Crossroads Alliance Church had petitioned.

Before: Kirk Walstedt, Vice Chair; Jane Sadler Richards, Member; Russell Piper, Member.

Appearances: Dennis Shand, on behalf of Crossroads Alliance Church, appellant. John Kuntze, P. Eng., on behalf of the Municipality. Gerry Legg, Drainage Superintendent on behalf of the Municipality.

DECISION OF THE TRIBUNAL

This appeal was heard in Ingersoll, Ontario on March 23, 2005. Crossroads Alliance Church appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 5 of the Drainage Act (the Act) from the decision of the Council of the Township of Zorra not to accept the Petition for drainage of the Crossroads Alliance Church property. Mr. Don MacLeod, Clerk Administrator for the Township of Zorra performed the duties of the Clerk of the Tribunal.

Statutory Context

Section 5 of the Act states:

Drainage works constructed on petition

5. (1) Where a petition in accordance with section 4 has been filed, the council shall forthwith consider the petition and shall, within thirty days after the filing of the petition,

(a) if it decides not to proceed with the drainage works, give written notice of its decision to each petitioner; or

(b) if it decides to proceed with the drainage works, give written notice of the petition and of its decision to each petitioner, the clerk of each local Municipality that may be affected, and the conservation authority that has jurisdiction over any lands in the area or, if no such conservation authority exists, the Minister of Natural Resources. R.S.O. 1990, c. D.17, s. 5 (1).

Appeal to Tribunal

(2) Where a petitioner,

(a) receives notice under clause (1) (a) of a decision of the council not to proceed with the drainage works; or

(b) has not, within thirty days after the filing of the petition, received notice of a decision of the council,

the petitioner may appeal to the Tribunal or, where lands used for agricultural purposes are included in the area described in the petition, the Minister may refer the matter to the Tribunal, and the Tribunal may confirm the decision of the council or direct the council to make such decision and to take such action as the council is authorized to take under this Act and as the Tribunal considers proper. R.S.O. 1990, c. D.17, s. 5 (2).

The Background

Mr. Dennis Shand the representative for the appellant, Crossroads Alliance Church, is also a member of its congregation. He was authorized by the signing officers of the church to present its appeal. Mr. Shand is a rate payer in the Township of Zorra. He is the Drainage Superintendent and Building Inspector for the neighbouring Municipality of Thames Centre. He holds a certificate in Engineering Technology and has overseen the construction and maintenance of drainage systems and drainage works pursuant to the Act for over 27 years.

The property where the Crossroads Alliance Church is located was purchased in 1990. The Church property was originally a public school. The surrounding grounds were tile drained to outlet into an open ditch on the western boundary of the property. The Engineer’s Report on the Pounds Kerr Municipal Drain 1982, was submitted at the hearing as an exhibit by Mr. Shand. The Crossroads Alliance Church property is within the watershed of the Pounds Kerr Municipal Drain which lies to the north and north east of the Church property. Township Road 64 runs along the northern boundary of the church property through the southernmost limit of the Pounds Kerr Municipal Drain watershed.

The Issue

The issue before the Tribunal was:

1. Should the decision of the Council of the Township of Zorra to not accept a petition submitted by Crossroads Alliance Church be confirmed or should Council be directed to take such action as it is authorized to take under the Act, namely to accept the petition?

The Evidence

Dennis Shand

Mr. Dennis Shand referred to aerial photographs of the church property explaining that:

• Surface water drained from a bush-lot to the east of the church property flooding the church parking lot.
• Water draining from the bush-lot became trapped by the church driveway and the road until it spilled over the driveway and ran westward between two houses on adjacent lots.
• The church property was tile drained toward its western limit.
• Water remained ponded on the church parking lot and surrounding lawns from spring until mid June each year.
• An open ditch at the western edge of the property was filled in 1970 when three residential lots to the west of the church were developed. At that time, the owner of the three residential lots, Mr. John Dorsman, backfilled the open ditch and planted a cedar hedge over it. An eight inch plastic pipe was installed which ran north and west toward the corner boundary created by Township Road 64 and the driveway of the western-most house lot. As a result there is no drainage function in the area where the ditch was located.
• Renovations at the church in 2002 revealed that the base of the north wall of the building was severely rotted due to flood damage.
• In spring, water entered the church from the east door; carpets were replaced every two years.
• The Church decided to implement a drainage system in 2002. Church officials signed a petition for drainage under Section 4 of the Act, in June 2003, however it was not submitted to the Municipality at this time. He volunteered to investigate, design and prepare a report for the drainage system on behalf of the Church in order to save on costs. The system was designed to drain the three residential properties neighbouring the church. The church was willing to pay all costs for the drainage system up to the crossing of Township Road 64.

Mr. Shand submitted that:

• He initially approached the Municipality for the construction of an outlet into the Pounds Kerr Municipal Drain.
• The residents of the residential properties adjoining the church property were agreeable to the system as proposed.
• He provided the Township of Zorra with a copy of his design for the drainage system in August 2003.
• He presented the proposal for drainage at the meeting of Council October 7, 2003.
• Council discussed his request for a Mutual Agreement Drain and carried the Motion as recorded in the Minutes of the October 7, 2003 meeting.
• The area Drainage Superintendent, Mr. Gerry Legg, agreed with his proposal to cross Township Road 64 to an outlet in the Pounds Kerr Municipal Drain.
• Construction of the works took place in Summer 2004.
• He believed that Council had accepted the proposal as a Mutual Agreement Drain under Section 2 of the Act between the church and the Township of Zorra.
• On April 5, 2004 he met with the Township Road Superintendent for a site meeting and was notified that by Resolution of Council dated October 8, 2003 the Township was willing to participate in the Mutual Agreement Drain but only with the provision that the Municipality would not pay for any construction or maintenance for the system. The resolution was referred to in a letter from the Municipal Clerk dated November 10, 2003.
• He approached Council again when it met October 19, 2004. A few days later a Resolution was passed reiterating the position that the Municipality would not contribute any funds to the system nor would it pay for any portion of the crossing of Township Road 64.
• He submitted the Section 4 Petition for Drainage which had been signed in June 2003 with a letter dated November 24, 2003 to the Township. The letter requested the Township incorporate the works as constructed under Section 31 of the Act.
• If a drain were constructed under Section 4 of the Act there would be far greater costs to the Municipality and any adjoining landowners.
• The Church wanted the drainage system to have legal status under the Act.
• The Church’s Petition for drainage was legal under the stipulations set out in the Act. The Council never considered the Petition properly. The Council gave no feedback with regard to the adequacy of the design of the drainage system.
• A mutual agreement drain would be the least costly method of obtaining drainage, for both the Municipality and the church.

In response to questions Mr. Shand told the Tribunal that:

• Water flowed north and west toward the road allowance prior to the installment of drainage structures by the church.
• He designed a system that provided the least expensive route to an outlet. The drainage system had to outlet to the north as there is not enough space for the drain to be routed between the houses on the adjacent residential lots to an outlet to the west.
• With the exception of the Municipality’s policy booklet definition of a “Private Drain” he has never seen a definition of a ‘Private Drain’.
• There is no provision under the Act that states that a Mutual Agreement Drain must be designed or constructed by an Engineer. A Petition Drain however must involve the services of an Engineer which increases the cost of a project.
• He spoke with two Engineers about his proposal and both agreed that the system should be built to take water away to outlet in the north.
• If the Municipality had agreed to a Mutual Agreement Drain as designed, the church was prepared to pay for the system up to the road crossing. The proposed system would provide improved drainage to the properties adjacent to the church property.
• Under his proposed Mutual Agreement Drain, the cost to the Municipality would have been approximately $2,500.
• The cost of the drainage system was discussed at the Council Meeting October 7, 2003. The Municipality made a verbal agreement to be a party to a Mutual Agreement Drain and to pay $2,100 toward the costs of the system.
• Although the Minutes of the Council Meeting for October 7, 2003 indicate that the Municipality agreed to be a party to a Mutual Agreement Drain under Section 2 of the Act, there is no written record of its agreement to contribute any funds to construct or maintain the system.
• Any works constructed under Section 4 of the Act would result in assessments against the owners of roads pursuant to Section 26 of the Act as determined by an Engineer.
• If the works were constructed under Section 4 of the Act, assessments against the church would be higher but the works would have legal status.
• If the system was constructed under Section 4, it would be most economical to use his plans which would reduce the expense of the Engineer’s report.

Gerry Legg

Mr. Gerry Legg, testified before the Tribunal on behalf of the Council of the Township of Zorra. He told the Tribunal that he is the Drainage Superintendent and Chief Building Inspector for the Township. He said that he had been with the Township for 12 years. Mr. Legg explained that the Township had a policy with respect to the construction of Private Drains. He stated that the policy had been in place since approximately 1975. Mr. Legg stated that:

• The Municipality’s policy stated that Private Drain owners shall pay all costs associated with the construction, maintenance, road crossing and outlet for a Private Drain. Under the policy private outlets are discouraged.
• He never met at the site with Mr. Shand but he was well aware that the bush-lot area to the east of the church was wet.
• The Municipality agreed to a Mutual Agreement Drain under Section 2 of the Act with the written conditions as set out in his Memorandum dated September 12, 2003. The Memorandum stated that the Township would not pay for Private Drain road crossing.
• He attended the October 7, 2003 meeting when the Council resolved to enter into a Mutual Agreement Drain with Crossroads Alliance Church.
• He wrote a Memorandum dated October 14, 2003 to clarify the Municipality’s position. The Resolution of Council dated October 7, 2003 was not clearly worded.
• He received a copy of Don Macleod’s November 10, 2003 letter advising Mr. Shand that the Municipality was prepared to be a party to the Mutual Agreement Drain provided it bore no costs associated with the project. He had no reason to believe that Mr. Shand did not receive a copy of the letter.
• He sent a Memorandum to Council dated January 4, 2005 advising that Mr. Shand was seeking drainage by way of Petition under Section 4 of the Act in an attempt to force the Municipality into incorporating a Private Drain.
• Council is under no obligation to accept a Petition.
• He defines a Private Drain as one that is not constructed under the Act.

Mr. Legg responded to questions that:

• He and Mr. Shand were present at the October 7, 2003 Council meeting. Costs were discussed but Council did not agree to adopt Mr. Shand’s proposal and contribute to costs.
• Private Drains can be constructed by more than one party but they are not constructed under the Act. Mutual Agreement Drains become legal entities under the Act.
• He met with two Council members outside of a regularly scheduled Council Meeting and discussed the resolution with respect to the Township becoming party to a Mutual Agreement Drain. As a result Council issued a resolution reiterating its policy with respect to not paying for road crossing for Private Drains.
• He has never overseen the construction of a Mutual Agreement Drain in his tenure as Drainage Superintendent in Zorra Township.
• He is aware that Private Drains in the Township have been incorporated into drainage systems constructed under Section 4 of the Act.
• He would accept the incorporation of a Private Drain into a Municipal Drain if such a course of action was recommended by an Engineer.
• Section 31 of the Act sets out the provisions for the incorporation of drainage works by the Engineer. The appointment of an Engineer is the result of a Petition under Section 4 of the Act.
• Under normal circumstances he examines petitions for drainage to assess their validity before they are presented to Council. The church Petition was submitted under normal circumstances.
• He has not spoken with any of the landowners adjacent to the church property.
• He defines the existing works as a Private Drain.

Summations

Mr. Shand told the Tribunal that the process of draining the church property had become complicated. He stated that the initial intention was to drain the property in the most cost effective manner. He stated that the process for acquiring drainage under Section 4 of the Act was preferable to the circumstances in which the church now found itself. Mr. Shand told the Tribunal that he was not aware that the Township was not in agreement until the works was constructed. Mr. Shand requested that the Tribunal order that the drainage works be incorporated as a Municipal Drain under Section 31 of the Act. He requested that any costs incurred for having Mr. Kuntze P. Eng. present at the hearing be paid from the Municipality’s general funds.

Mr. Kuntze told the Tribunal that any costs for his attendance at the hearing were to be paid from the Municipality’s general funds. He stated that the Township of Zorra recognizes that there is a severe flooding problem at the church property. Mr. Kuntze argued that church officials signed the Petition in June 2003 and that the Petition for Drainage is a reasonable method of involving the Township in the drainage proposal. He said that Mr. Shand tried to circumvent the Township’s policy with respect to the construction of Private Drains and Mutual Agreement Drains. Mr. Kuntze stated that Mr. Legg and the Township Council dutifully upheld the Township’s policy. Mr. Kuntze told the Tribunal that Mr. Shand should be ordered to continue the works under the provisions of the Act for a Mutual Agreement Drain and with respect to the Township policy. He said that it was too late to consider a Petition.

The Findings

The Tribunal heard the evidence of Mr. Shand and Mr. Legg who both agreed that there was a significant drainage problem on the church property.

The evidence of the Municipality is that it resolved to be party to a Mutual Agreement Drain under Section 2 of the Act, however the process did not progress beyond this phase in accordance with the provisions of Section 2. The existing drainage system does not conform to the criteria set out in Section 2 of the Act.

The Tribunal is convinced that Mr. Shand initiated his proposal with the intention of obtaining the most economical solution to the drainage problem. It is the finding of the Tribunal that Mr. Shand genuinely believed that a Mutual Agreement Drain was the least costly solution for drainage. He understood that there was agreement with his proposal as presented to the Municipal Council and as evidenced by two Resolutions of Council to enter into a Mutual Agreement Drain agreement with the Crossroads Alliance Church. Mr. Shand did not, however, understand from his attendance at the Council Meetings of October 7, 2003 and October 19, 2004 that the Township of Zorra was not willing to contribute to any costs associated with the construction of the drain. It was not until a letter dated November 10, 2003 was delivered to him in early April 2004 that Mr. Shand clearly understood that the Township’s agreement to participate in the drainage system did not include any contribution of funds for the construction of the drain or the road crossing.

The Petition for Drainage was signed by Church officials in June 2003. It was submitted to the Township of Zorra with a request to incorporate the existing works on November 24, 2004, months after the work had been completed. There is no provision under Section 4 of the Drainage Act, with respect to time limitations from signing a Petition to filing it with the Municipality, nor is there any provision that prevents the consideration of a Petition based on the circumstances existent prior to its being filed.

The Municipality was within its right to reject the Petition under Section 4, as was Crossroads Alliance Church within its right to appeal the rejection of the Petition to the Tribunal. The Tribunal does not accept the argument of the Township of Zorra that the Section 4 Petition should be rejected because of the failure of Mr. Shand and the Township to reach agreement on drainage for the church property under Section 2 of the Drainage Act.

Order of the Tribunal

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

1. The appeal of Crossroads Alliance Church is granted. The Township of Zorra is ordered to proceed with the Petition as provided for under Section 5 of the Drainage Act and pursuant to the sections of the Act with respect to administering Petitions for Drainage.

Dated at Essex Ontario, this 12th day of May, 2005.