Boyce v. Town of Amherstburg, 2006 ONAFRAAT 41

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: appeals.tribunal.omafra@ontario.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Replacement Agricultural Access Culvert Over the Deslippe Drain

Township of Amhertsberg

Replacement Agricultural Access Culvert Over the Deslippe Drain (RE) 2006 ONAFRAAT 41

STATUTE:

Drainage Act

HEARING:

October 24, 2006

DATE OF DECISION:

October 31, 2006

2006-41

NEUTRAL CITATION:

2006 ONAFRAAT 41

Replacement Agricultural Access Culvert Over the Deslippe Drain

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 David Boyce and Carolyn Boyce, Amherstburg, Ontario under Section 54 of the Drainage Act from a decision of the Court of Revision on the Replacement Agricultural Access Culvert Over the Deslippe Drain (Wismer Bridge over the Deslippe Drain) in the Town of Amherstburg.

Before: Kirk Walstedt, Vice Chair; Jack Young, Vice Chair; Doug Flook, Member

Appearances:

Carolyn Boyce, appellant

David Boyce, appellant

Bruce Crozier, P. Eng., engineer who prepared the report, for the respondent, the Town of Amherstburg.

Dwayne Grondin, Drainage Superintendent, Town of Amherstburg, witness

DECISION OF THE TRIBUNAL

This appeal was heard in Amherstburg, Ontario on October 24, 2006. Mr. and Ms. Boyce appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54 of the Drainage Act (the Act). They sought a reduction in the assessment to their property (identified by Roll No. 620-01110, Lot 74, Concession 6) contained in the engineer’s report titled Replacement Agricultural Access Culvert Over the Deslippe Drain by Bruce D. Crozier Engineering dated January 6, 2006 (the Report), as upheld by the Court of Revision. In the alternative, they asked that the Town of Amherstburg be required to pay their assessment, as it was less than $50.

Mr. David Mailloux, Clerk of the Town of Amherstburg (the Municipality), 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 Report▬ parties to this 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:

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); 2006, c. 19, Sched. A, s. 6 (1).

Notice

(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. R.S.O. 1990, c. D.17, s. 54 (2); 2006, c. 19, Sched. A, s. 6 (1).

Procedure

(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, c. D.17, s. 54 (3); 2006, c. 19, Sched. A, s. 6 (6).

Subsection 61(3) of the Act states:

Assessments of $50 or less

(3) Where the assessment against any parcel of land is $50 or less, the council of the local municipality may provide that the assessment shall be paid out of the general funds of the municipality or that the assessment shall be paid in the first year in which the assessment is imposed upon the land assessed. R.S.O. 1990, c. D.17, s. 61 (3).

The Background

Mr. Bruce Crozier, P. Eng., told the Tribunal the Municipality received a request under Section 78 of the Act from Mrs. Ethel Wismer who sought the replacement of a deteriorating access culvert, originally installed in 1928, with a new and longer culvert. He said he was appointed under the Act to design the project and he subsequently held a site meeting, carried out a survey of the lands around the culvert and prepared his report. He said Mr. and Ms. Boyce appealed their assessment to the Court of Revision which upheld the schedule contained in the Report.

Mr. Crozier explained that to distribute the cost fairly he calculated the cost of replacing the existing culvert with one of similar length; then calculated the cost of the materials needed for the additional length requested. The incidental costs were then proportioned between these two estimates. He said the cost of the extra length was assessed entirely to Mrs. Wismer. He said the cost of replacing the existing culvert was assessed 50% to Mrs. Wismer and 50% to upstream landowners. He explained that the hectarage of upstream lands was adjusted to equivalent hectarage to account for the land use (farm, residential, road).

The Issues

The issues before the Tribunal were:

1. Is the assessment to the Boyce property justified?
2. Should the Municipality be required to pay the assessment on the Boyce property given that it is less than $50?

The Evidence

Appellants’ Case

Ms. Carolyn Boyce told the Tribunal the Boyce property was considered an undersized agricultural lot. She said the property was miles away from the proposed new access culvert and it was not fair that it should be assessed when properties just north of the culvert were not assessed. She also questioned the need for the culvert as she said the Wismer family could enter the property from an adjacent property they also owned. She expressed concern with new development in the area and theorized that the culvert was needed for development rather than agricultural use.

In the alternative, Ms. Boyce pointed out that the Municipality could waive assessments that were less than $50 under Subsection 61(3) of the Act and pay them out of general funds. She said she had been told the Municipality did not want to set a precedent. She testified that she had heard of small assessments being waived in other municipalities.

Mr. Boyce indicated that he was in total agreement with Mrs. Boyce. No party had any questions of either of the appellants.

Respondents’ Case

To confirm that the Boyce property contributed water to the culvert, Mr. Dwayne Grondin, Drainage Superintendent, presented a sketch and outlined how water flowed from the Boyce property from a 4-inch tile into an 18-inch concrete pipe through three catchbasins to the Deslippe Drain. He said he observed water flowing out of the tile on the Boyce property just after a rain on October 18, 2006. There were no questions to Mr. Grondin.

Mr. Crozier filed documents with the Tribunal which he said indicated the Boyce property had been found to be in the watershed of the Deslippe Drain in 1928 and 1983 by two different engineering firms and noted this was consistent with his position.

Mr. Crozier explained that:

• It was his practice to assess the cost of replacement culverts in the Municipality as 50% to the landowner directly using the culvert and 50% to all upstream landowners as they would contribute water that would flow through the culvert.
• This was why properties to the west (later corrected to north) were not assessed on the culvert replacement report – their water did not use the culvert.
• The Municipality had the discretion to pay assessments of less than $50 from general funds but this was not its usual practice.
• The Wismer property was in agricultural use and he had no knowledge of any future development plans. He had to base his assessments on current use.

Mr. Crozier clarified that to assess the project he:

• Estimated the cost of building a five metre wide culvert to replace the existing culvert at $22,710.00.
• Estimated the cost of the additional 7.2 metres requested by the landowner at $10,620.00.
• Added these figures to get a total construction cost of $33,330.00.
• Estimated incidental costs as $3,863.36 for the replacement of a same size culvert and an additional $1,806.64 for the extra length of culvert desired.
• Assessed the cost of the extra length - $12,426.00 – to the Wismer property as a special benefit.
• Assessed half the cost of replacing the culvert with a same size culvert to the Wismer property as a statutory benefit.
• Assessed half the cost of replacing the culvert with a same size culvert to upstream properties as an outlet liability assessment.

Mr. Crozier explained that to determine how much to assess each upstream property for outlet, he:

• Determined there were 222.94 ha of agriculture land, 7.107 ha of residential land and 10.37 ha of roads draining through the culvert on the Wismer property.
• Multiplied the residential hectarage by three and the road hectarage by nine to obtain equivalent hectarage for each type of land.
• Divided the equivalent hectarage into the costs to be assessed and obtained a rate of $39.358276/ha.
• Multiplied the equivalent hectares on each property by the per hectare rate to obtain the outlet assessment.

In response to questions, Mr. Crozier indicated:

• Upstream lands were assessed a portion of the cost of culverts because the culverts had to be made large enough to accommodate flow from those lands. Downstream properties did not drain through the culvert so were not assessed.
• The driveway over the new culvert would be 10 feet wider than usual.
• It was a municipal practice to charge 50% of culvert replacement costs to upstream landowners and 50% to the landowner needing the culvert.
• The 50/50 ratio was not always used but was a good starting point. If the culvert were closer to the bottom of the drain a higher proportion of the costs might be borne by upstream landowners.
• There was more run-off from residential land than farm land due to buildings; he had used 4x or 5x factors on subdivisions but because the residential lands in the Deslippe Drain watershed had more grass he used a 3x factor.
• Roads have a higher run-off coefficient because they are paved and generate more run-off.
• The Wismer culvert was one of five culverts installed under a 1928 engineer’s report.

Summations

Mr. Boyce told the Tribunal that at previous meetings Ms. Boyce was told that this is just the way it is and there is no use fighting it as they could not win. He said he understood from Mr. Crozier’s explanation how water flows and how he ties it all together. He said their other issue was the size of the culvert for a simple farm crossing as they did not want to see the land used for industrial purposes. He asked the Tribunal to excuse the appellants from an assessment on the drainage works.

Mr. Crozier submitted that the Boyce property drained to the Deslippe Drain and through the culvert that was to be replaced. He argued that there was no evidence one way or the other as to the future use of the land and that it should not affect the assessments in the current Report. He asked the Tribunal to uphold his assessments.

The Findings

The Tribunal accepts the engineer’s explanation of the calculation of assessments and finds that they are fair and equitable and that the engineer has followed generally acceptable engineering practices.

The engineer clearly demonstrated to the satisfaction of the appellant and Tribunal that the subject property was located within the drainage area and that the appellants’ have an outlet liability for the water that flows from the appellants’ property through the culvert that is proposed to be constructed.

With regard to the argument that Subsection 61(3) be applied to the Boyce property, the Tribunal notes that it is clear that this is the prerogative of the Council of the Municipality and that the Council has chosen not to exercise that prerogative.

The Tribunal notes that there appeared to be a communication issue regarding the understanding of how water flowed in this watershed and that the procedures under the Act could possibly have been better explained to the landowners.

ORDER OF THE TRIBUNAL

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

1. The appeal of Carolyn Boyce and David Boyce under Section 54 of the Act is dismissed.

2. 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 Essex, Ontario this 31st day of October, 2006.