Steve Seiler v. Municipality of West Perth, 2006 ONAFRAAT 24

Agriculture, Food and Rural Affairs Appeal Tribunal

1Stone 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:appeals.tribunal@omafra.gov.on.ca

Guelph (Ontario) N1G 4Y2

Tél.: (519) 826-3433, Téléc.: (519) 826-4232

Email: appeals.tribunal@omafra.gov.on.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Reaney-Shaw Municipal Drain

Reaney-Shaw Municipal Drain (RE) 2006 ONAFRAAT 24

STATUTE:

Drainage Act

HEARING:

May 17, 2006

DATE OF DECISION:

July 26, 2006

2006-24

NEUTRAL CITATION:

2006 ONAFRAAT 24

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

AND IN THE MATTER OF: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Steve Seiler, Mitchell, Ontario under Section 54 of the Drainage Act from a decision of the Court of Revision on the Reaney-Shaw Municipal Drain in the Municipality of West Perth.

Before:

Kirk Walstedt, Vice Chair; Jack Young, Vice Chair; Graeme Hedley, Member

Appearances:

Mr. Steve Seiler, appellant

Mr. Jan Van Nuland, assessed landowner

Mr. Bill Dietrich P. Eng., Dietrich Engineering Limited, Engineer for the Report

Mr. Mike Kraemer, on behalf of the Municipality of West Perth

DECISION OF THE TRIBUNAL

This appeal was heard in Mitchell, Ontario on Wednesday May 17, 2006. Mr. Steve Seiler appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54 of the Drainage Act (the Act) from the decision of the Court of Revision with respect to the February 3, 2006 Engineer’s Report prepared by W.J.Dietrich, P.Eng., of Dietrich Engineering Limited on the Reaney-Shaw Municipal Drain 2006 (the Report) in the Municipality of West Perth (the Municipality)

Patricia Taylor, Clerk Administrator for the Municipality of West Perth, performed the duties of the Clerk of the Tribunal. Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the February 3, 2006 Engineer’s report parties to the hearing. An Affidavit of Service was filed with the Tribunal as proof that all parties have been served with notice of this hearing.

Statutory Context

Section 54 of the Act states that:

(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.

The Background

The Municipality of West Perth appointed Mr. Bill Dietrich, P. Eng., to prepare a report under Section 78 of the Drainage Act, for the repair and improvement of the Reaney-Shaw Municipal Drain. The Reaney-Shaw Municipal Drain was constructed under a report by James A. Howes dated February 8, 1964. It consisted of a Main Drain, 9,500 feet long, constructed of tile varying in size from 6 to 14 inches and it incorporated the Morgan Shaw Award Drain constructed in 1920 and the Thos. Reaney Award Drain constructed in 1924. The Reaney-Shaw Drain had a Main Drain and two branches; A Drain and B Drain.

It was determined that the drain should be repaired to increase its capacity pursuant to the recommendations for municipal drains by the Ministry of Agriculture, Food and Rural Affairs. The improvements under the report dated February 3, 2006 include: replacement of the Main Drain with tile varying is size from 350 mm to 750 mm, for a length of 2116 meters and the abandonment of the Main Drain and the upper portion of Branch A in Lot 10 that was constructed under the James A. Howes Report in 1964.

The Issue

The issue before the Tribunal was:

1. Should the assessments against the Seiler property be reduced?

The Evidence

Bill Dietrich, P. Eng.

Mr. Bill Dietrich P. Eng., gave an overview of the assessments under the report dated February 3, 2006. Mr.Dietrich told the Tribunal that the watershed was comprised of 145 ha. He said that 142.8 ha was agricultural land and that there were 2.8 ha of municipal road. He told the Tribunal that the existing drain constructed under the report by James A. Howes dated February 8, 1964 was undersized. He said that the Main Drain and the upper portion of Branch A in lot 10 were to be abandoned. He submitted that the abandoned portions of the Main Drain were to be owned and maintained by the owners of the properties on which the abandoned portions were located. He submitted that the Municipality would be responsible for maintaining the remaining portion of Branch A and Branch B of the drain pursuant to the maintenance schedule set out in the report dated February 8, 1964 by James A. Howes.

Mr. Dietrich told the Tribunal that the improved drain would have a capacity for 25 mm of rainfall over a 24 hour period. He submitted that under Section 22 of the Act he apportioned benefit liability at $76,000; outlet liability under Section 23 at $58,400 and special assessments under Section 26 to be $6,600 for a total cost of $141,000. Mr. Dietrich told the Tribunal that the costs for the project were apportioned such that $23,059.00 of the total cost was assessed against roads in the watershed and that $117,941.00 was assessed against lands in the watershed.

Mr. Dietrich explained to the Tribunal that he assigned a runoff factor of 1 multiplied by the number of hectares for workable agricultural lands; 0.6 multiplied by the number of hectares for bush lands. He submitted that the run off factor assigned to lands that are systematically tile drained to outlet outside the watershed is 0.5 multiplied by the number of hectares. The run off factor used for roads was 4.0. He explained to the Tribunal that in considering the apportionment of assessment for outlet liability he considered the area of lands that were to drain into the municipal drain, the runoff characteristics and the point at which water enters the drain. He submitted that benefit liability assessments are based on the increase in value to lands from the construction of the drainage works and the increased control of surface and subsurface waters.

Steve Seiler

In his opening statement Mr. Seiler told the Tribunal that the water in the Reaney-Shaw drainage systems was not being removed quickly enough. He stated that he understands the apportionment of assessments under the Drainage Act, but that there was no provision under the Act for fairness to all assessed landowners. He stated that the Act did not provide for the levying of the appropriate assessments for lands that collected water.

Mr. Seiler testified that the assessments against the roads in the Municipality should be increased to offset the decrease in assessments against his properties. Mr. Seiler said that the roads in the Municipality had been built-up by three to four feet which resulted in water being collected in the north half of the watershed. He said that the proposed works included the installation of two catch basins at the point where Branch A of the drain enters the Main Drain at Road 160. Mr. Seiler told the Tribunal that, prior to improvements to Road 160, run-off from spring melting or heavy rains ran over the road causing little damage to the surrounding lands, however, the built-up road now caused water to pond on either side, as the road acted as a dam during spring run-off and heavy rains. Mr. Seiler told the Tribunal that the existing drain, though in poor repair, prevented substantial ponding of water in the upper part of the watershed.

Mr. Seiler submitted to the Tribunal that:

• There are two large municipal drains located on his properties including a portion of the Main Drain of the Reaney-Shaw Drain and its Branch B.
• He is satisfied that the Main Drain and Branch B contructed under the Howes report from 1964 are in adequate working condition.
• He does not believe that improved benefit liability to his lands is commensurate with the benefit liability of $27,000.
• The rainfall co-efficient will be increased by 1 inch if the Main Drain is abandoned.
• The outlet liability should be reduced proportional to any reduction in the benefit liability.
• The report indicates that a catch basin is to be installed at station 0+755 where Branch B enters the Main Drain; however, there has been no explanation as to why it is necessary. It can be seen that the proposed catch basin will not have a capacity sufficient to receive water that would create a decrease in flow from tile outlets from his property into the Main Drain.
• He could construct a private drain on his property that would have the same effect as the proposed works, but would cost only $10,000.

Mike Kraemer

Mr. Kraemer told the Tribunal that he was the Municipal Operations Manager. He stated that his duties included the supervision of drainage projects. Mr. Kraemer explained to the Tribunal that three catch basins were to be installed along the County Road 160; two where the Main Drain intersected the road and one at the point where Branch A met the road and continued north eastward.

In response to questions, Mr. Kraemer told the Tribunal that there had been significant improvements to the County Road 160. He said that the elevations for the catch basins were to be determined after the drain was constructed. He said that he would oversee the installation of the catch basins.

Jan Van Nuland

Mr. Van Nuland told the Tribunal that his farm is systematically tile drained but that the function of the tile was limited by the inadequate outlet of the present system. He stated that approximately 50 acres of hay was lost due to flooding. Mr. Van Nuland said that the tiles that were installed in 1920 are undersized and the tiles installed in 1964 were in disrepair. Mr. Van Nuland said that water from his property flows through the entire works to outlet, whereas water from the Seiler property flows through half of the works to outlet. Mr. Van Nuland referred to the enlarged map of the drainage area from the report; he pointed out the location of the hay field that was lost due to flooding and the location of his bush lot.

Summations

Mr. Seiler told the Tribunal that his request for a decrease in assessment against his property should be offset by an increased assessment against the Municipality. He said that the Drainage Act did not serve his interests as it should. He said that due to the existence of more roads and urban paved areas, there is more water now than there was in the past. Mr. Seiler argued that he is also assessed on another drain that serves his property. He stated that his neighbour Mr. Van Nuland was fairly assessed but that the Municipality was not paying its share of the assessments. He stated that the Drainage Act needed to be upgraded and asked the Tribunal to establish a precedent under the Act. He told the Tribunal that the road acted as an aqueduct that conveyed water to his farm.

Mr. Seiler stated that the proposed drainage works provided no benefit or increased value to his property. He said that the existing drainage system provides adequate drainage for his property and that the new works was to be constructed for the benefit of the Municipality and Mr. Van Nuland.

Mr. Dietrich told the Tribunal that he had reviewed the assessments. He stated that the cost of the proposed drainage works was apportioned fairly and equitably. He explained that roads within the watershed are assessed according to the high rate of run off. Mr. Dietrich said that the roads account for only two percent of the total land in the watershed. He said that the proposed drainage works was designed as an improvement to the existing works. He stated that the proposed drainage works would provided subsurface drainage which would prevent soil erosion and flooding of downstream properties. Mr. Dietrich maintained that the proposed drainage works would provide improved drainage to the assessed properties. He stated that the cost of the proposed drainage works was assessed in a fair and equitable manner.

The Findings

Mr. Seiler presented the argument that because of the location of his farm within the watershed the present drain, while undersized, serves his property reasonably well.

The Tribunal agrees with Mr. Seiler’s testimony that his property does not benefit to the extent as described in the Report in light of the existing drainage he already has through the existing Reaney Shaw drain. The Tribunal accepts his request that his benefit assessment be reduced. The Tribunal will order that the benefit assessment on the Seiler property (Roll # 1-12) be reduced by $1,700.00 and the benefit assessment on Road 160 be increased by $1,700.00.

The Tribunal shall order that the engineer incorporate the maintenance schedule on the lower portion of Drain A and Drain B as outlined in the James A Howes report dated February 8, 1964 into the current Report by updating landowners and converting dollars to percentages similar to the schedule of Assessment for maintenance on page 8 of the Report. It is important when new reports are prepared that the maintenance schedule for all previous drains in the project that were not abandonened be covered by an up to date maintenance schedule.

With regard to Mr. Seiler’s request that this decision act as a precedent, the Tribunal notes that as it is an administrative tribunal, not a court, its decisions do not set precedents. The Tribunal hears each case on its own merits. The powers granted to administrative tribunals under the Statutory Powers and Procedures Act require that decisions be made consistent with the relevant legislation. The Tribunal views this decision as being consistent with the Drainage Act.

ORDER OF THE TRIBUNAL

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

1. The benefit assessment on the Pt Lot 12 Con 2, Roll No. 1-12 (S.Seiler) be reduced from$22,500.00 to $20, 800.00.

2. The benefit assessment on Road 160 (Municipality of West Perth) be increased from $12,500.00 to $14,200.00.

3. Prior to the passing of the provisional by-law the engineer shall add a maintenance schedule for the lower part of Drain A and Drain B as outlined in the James A Howes award dated February 8, 1964 into the current 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.