Place Riviera Inc. (Robert Gauthier) v. Township of Champlain, 2006 ONAFRAAT 7

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@omaf.gov.on.ca

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

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Gauthier Municipal Drain

Township of Champlain

Gauthier Municipal Drain (RE) 2006 ONAFRAAT 07

STATUTE:

Drainage Act

HEARING:

March 8, 2005

DATE OF DECISION:

March 22, 2006

2006-07

NEUTRAL CITATION:

2006 ONAFRAAT 07

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 Place Riviera Inc. (Robert Gauthier), L’Original Ontario under Section 54 of the Drainage Act from a decision of the Court of Revision on the Gauthier Municipal Drain in the Township of Champlain.

Before:

Gene Trotman, Vice Chair; Ron Gelderland, Member; Denis Perrault, Member.

Appearances:

Mr. Robert Gauthier, appellant and President of Place Riviera Inc.

Mr. Michael Chambers, counsel to Mr. Gauthier

Mr. Luc Cusson, assessed landowner

Mr. Roch Leduc, assessed landowner

Ms. Rita Bédard, assessed landowner

Ms. Krystyna Kowalska, assessed landowner

Mr. Pascal Pitre P. Eng. the Engineer who prepared the report revised November 10, 2004 and amended July 20, 2005

Mr. Robert Lefebvre, Clerk-Treasurer, Township of Champlain

DECISION OF THE TRIBUNAL

This appeal was heard in Alfred, Ontario on March 8, 2005. Mr. Robert Gauthier (Place Riviera Inc.) appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54 of the Drainage Act (the Act) from the decisions of the Court of Revision dated November 28, 2005 from the assessments prepared in the Engineers report by the Thompson Rosemount Group revised November 10, 2004 and amended July 20, 2005 by Pascal Pitre P. Eng. on the Gauthier Municipal Drain (the Report).

Mr. Robert Lefebvre, Clerk of the Township of Champlain performed the duties of the Clerk of the Tribunal.

Statutory Context

Section 54 of the Drainage Act states:

(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

Mr. Pascal Pitre P. Eng., prepared the report revised November 10, 2004 and amended July 20, 2005 from which the Court of Revision made its decision November 28, 2005 with respect to assessments under the report.

Mr. Pitre gave the Tribunal an overview of the background of the Gauthier Municipal Drain. He became involved in the preparation of a report in 2003.

The report was prepared from the successful petition for drainage works from Mr. Gauthier under Section 4 of the Drainage Act. The area where the drainage works is to be located on Mr. Gauthier’s property (Place Riviera properties) a subdivision, is within a defined natural watercourse. A natural channel where water drained toward its outlet into the Ottawa River was visible downstream of the adjacent Cusson property. If a proper channel were to be constructed on the Cusson property, sheet flows of water across the Cusson property would be eliminated.

The area requiring drainage improvements was surveyed and the Ministry of Natural Resources provided base mapping for the area. The upstream boundary of the proposed works is adjacent to an existing watercourse in the south west corner of the Place Riviera properties at County Road 24 where it will be continued eastward across the Place Riviera properties and then north eastward across the Cusson property to outlet into the Ottawa River.

A computer generated model of storm events was produced; it was decided that the most practical capacity for construction of the works would be to design the proposed works to withstand a one in five year storm. The usual capacity design standard for municipal drains is a one in ten year storm however the chosen design for one in five year storm was adequate as the lands in the subdivision were higher than the surrounding lands such as those belonging to Mr. Cusson and the adjacent Ottawa River. Most of the work for the proposed drain would be on the Cusson property. The portions of the natural channel that existed on the Cusson property will be excavated, and the sides sloped..

The costs of the proposed works was broken down into two categories: drain construction and culvert replacement. In the case where access to lands required the replacement of undersized culverts, the lands were to be assessed for the new culverts benefit and outlet liability. The costs of replacing culverts is to be assessed 50 percent against the lands requiring the culvert for access and 50 percent against upstream lands that contribute water flowing through the culverts.

The allocation of construction costs were apportioned 40 percent benefit and 60 percent outlet under the report. The use of this ratio is typical in the construction of municipal drains where outlet liability is assessed against lands based on the length of drain that carries away their water. The engineer conducted a site meeting on March 23, 2004 for all property owners with frontage on the watercourse . Site meetings were held with assessed landowners during 2004 and 2005. Background information on the existing drainage conditions was gathered from site meetings with landowners. Assessed landowners who owned properties north of the County Road 24 did not express interest in the proposed works.

It was during the meeting of the Court of Revision that it became evident that some properties derived more benefit from the proposed works than others. It became apparent that the main purpose of the proposed works was to provide improved drainage, and that the Place Riviera properties would have the greatest improvement in drainage. Benefit liability was the main advantage to be derived from the proposed works. The Court of Revision changed the benefit liability assessed against six properties in the watershed: the Place Riviera properties, United Counties of Prescott and Russell, Mr. Dorila Cusson, Mr. Brian Haworth, Ontario Power Generation and Hawkesbury Waterfront Estates.

Of the six properties that had revised benefit assessments as determined by the Court of Revision, the assessment was changed to 70 percent benefit liability from 40 percent benefit liability. The apportionment of assessments from the decision of the Court of Revision resulted in assessments against the Place Riviera properties amounting to approximately 50 percent of the total cost of the proposed works. The Place Riviera properties required improved drainage; it was usually the case that the developer paid the bulk of the cost of drainage works constructed to benefit a subdivision. The proposed works would improve drainage on the Cusson property but not to the extent that flooding from spring run-off or heavy rain events would be avoided.

The Issue

The issue before the Tribunal was:

1. Should the apportionment for benefit and outlet liability (40 percent benefit, 60 percent outlet) be assessed as initially scheduled under the Engineers Report revised November 10, 2004 and amended July 20, 2005?

The Evidence

Robert Gauthier

Mr. Gauthier submitted to the Tribunal that he wished the assessments against the Place Riviera properties as determined by the Court of Revision to be returned to the apportionments previously scheduled under the Engineers Report revised July 20, 2005.

Mr. Gauthier explained to the Tribunal that initially, he had tried to obtain improved drainage under Section 3 of the Act but had been unsuccessful. A subsequent petition for drainage under Section 4 was rejected by the municipality. He said that a panel of the Tribunal heard the matter under Section 45 of the Act and reversed the decision of the municipality not to adopt the by-law for the proposed drainage works. Mr. Gauthier said that he had not attended the Court of Revision meeting as he was confident that the municipality would adopt the report as it was ordered to do by the Tribunal in its April 13, 2005 decision. Mr. Gauthier maintained that he was not aware that the Court of Revision had the authority to change the costs of assessments as much as 50 percent from the assessments scheduled under the report. Mr. Gauthier stated that the Drainage Act applied to all lands equally and that lands under development should not be prejudiced in the application of the Act. He stated that according to Section 3.1.3 of the report, run-off from roofs and paved road ways within the Place Riviera subdivision increased the flow of water to the outlet by seven percent. He said that he did not take issue with this finding. Mr. Gauthier pointed out that Section 3.1.3 of the report concluded that peak flow run-off from the Place Riviera properties would reach an outlet in the Ottawa River in a much shorter time than peak flow run-off flows from properties located south of County Road 24. He told the Tribunal that Section 3.1.3 of the report indicated that peak flow run-off from the Place Riviera properties was accelerated due to the number of houses and paved surfaces. Mr. Gauthier explained that the purpose of a six foot diameter culvert at County Road 24 at the southwest corner of the Place Riviera subdivision was to convey water from the upstream properties across the Place Riviera properties and Mr. Cusson’s property, to outlet into the Ottawa River.

Mr. Gauthier told the Tribunal that the base mapping prepared by the Ministry of Natural Resources indicated that a natural channel existed on the Place Riviera properties. He said that in hearing the matter of the municipality’s refusal to accept the petition for drainage; the Tribunal had ordered the designation of a right of way, for future maintenance of the drain. Mr. Gauthier told the Tribunal that the Place Riviera properties are elevated in comparison to surrounding lands and the Ottawa River at its northern boundary. He said that he finds the initial assessment apportionment of 40 percent benefit and 60 percent outlet acceptable, and that he requested that the Tribunal overturn the decision of the Court of Revision from its apportionment of 30 percent outlet 70 percent benefit. He stated that improved drainage is necessary as a recent heavy rain resulted in blockage of a road on his property.

Pascal Pitre, P. Eng.

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

• In accordance with the Tribunal order dated April 13, 2005, an investigation was carried out; it was determined that water from the Leduc property flowed into the watershed of the proposed Gauthier Municipal Drain. The removal of a manmade obstruction and the discovery of a previously unmapped culvert revealed that a total of 12 properties had not previously been assessed for outlet into the proposed works. The unmapped culvert brought water from a tributary drain on the south side of County Road 4 into the watershed of the proposed works. Assessments under the report were adjusted accordingly.
• The 12 properties on the tributary drain contributed water to the bottom portion of the drain. The addition of the 12 properties did not alter the capacity of the drain to handle a one in five year storm.
• The agricultural lands assessed in the report are eligible for a one third grant as the report was filed before the deadline when the Ministry of Agriculture, Food and Rural Affairs changed its grant policy for agricultural lands.
• A typographical error in certain cells of the spreadsheet indicated the wrong assessments for culverts; the error has been corrected.
• A sum of $2,500 was set aside for erosion control structures. Erosion control structures would most likely be constructed in the upstream most section of the proposed works where the banks of the channel were steepest.
• He is in agreement with the Court of Revision’s changes to the apportionment of assessments between benefit and outlet.
• The Department of Fisheries and Oceans reviewed the proposed dates of construction of the proposed works with the intention of making any necessary recommendations that would reduce the impact of construction on fish habitat.
• The original and revised reports specified a 24 m right of way through the Cusson property for maintenance.
• Mr. St-Jean, the Drainage Superintendent was consulted with respect to the wide right of way on the Cusson property. It was Mr. St-Jean’s opinion that the spreading of spoil should in no way result in the creation of a berm, as the lands on the Cusson property were very flat; a berm would prevent water from flowing into the drain.
• He consulted with Mr. St-Jean, Drainage Superintendent and Mr. Sid Vanderveen, Drainage Co-ordinator with the Ministry of Agriculture, Food and Rural Affairs, both agreed that the apportionment of benefit liability assessment was a very subjective process.
• The deepest portion of the drain will be served by either twin culverts 900 mm in diameter or a single 1200 mm diameter culvert by 15 m long.
• Maintenance will be pro rated against outlet assessments.
• The proposed works will not benefit the Cusson property to the extent that it can be developed with without first elevating it with fill.
• He made no recommendations to the Court of Revision with respect to the apportionment of assessments, but only responded to questions when asked.
• It is his contention as stated in section 3.1.3. of the report, that peak run-off flows from the Place Riviera properties do not coincide with, or affect peak run-off flows from other properties in the watershed.
• In preparing the assessments he assigned a value to the affected lands based on the expected run-off. Some properties with proportionately more impermeable surfaces will contribute more water to the proposed works through run-off.
• He believes that an adequate outlet increases the value of the affected properties.
• The Court of Revision requested his opinion with respect to reversing the apportionments for benefit and outlet to a ratio of 60 percent benefit and 40 percent outlet: in his opinion this was also a suitable ratio.
• The main purpose of the proposed works is to benefit certain lands through improved drainage. It would also be reasonable to apportion the cost at 50 percent benefit and 50 percent outlet.
• In his professional opinion given the subjective nature of apportionment of costs, 70 percent benefit would be the highest benefit ratio that he was agreeable to endorsing.
• He had limited experience with drainage works that serve both agricultural and residential properties. In his opinion, the apportionment of 30 percent outlet and 70 percent benefit is defensible however it would be easier to defend the apportionment of 40 percent outlet 60 percent benefit.
• Initially he believed that the Cusson property would benefit more from the proposed works. The Cusson property will still flood in spring and after heavy rain fall events.
• Though he reviewed other drainage cases he was unable to find a precedent where agricultural and residential properties were assessed to the same watershed such as the proposed Gauthier Municipal Drain.
• In his experience the apportionment of benefit liability remains a very subjective exercise.

The Court of Revision decision when applied to the assessments results in an increase in assessments against the Place Riviera subdivision properties and the County, however, the share of costs assessed against the Cusson property were reduced due to the lack of benefit accorded to it by the proposed works. The Haworth property, located on the eastern side of the proposed works would benefit from the works. A culvert was needed to access the Haworth property. Outlet liability to the Haworth property was reduced.

Assessed Landowners

Dorila Cusson

Mr. Dorila Cusson told the Tribunal that he was born near the sight of the proposed drainage works and had lived there all his life. He stated that there had never been a natural channel on his lands where the proposed works was to be located. He stated that some of his property had been expropriated for the construction of the Carillon Dam and a lagoon had been created. Mr. Cusson said that his property does not derive any benefit from the proposed works. Mr. Cusson stated that he does not believe that the proposed excavation to a depth of one and a half feet, nor the maintenance of a right of way 75 feet in width would result in any benefit to his property. Mr. Cusson said that his land was low lying and therefore water from all adjacent lands flowed onto his property. He stated that he preferred that the proposed works be excavated to a depth of three feet.

Roch Luduc

Mr. Roch Luduc told the Tribunal that he owned property in Lot 17 Concession 8. He stated that he had lived on his property for 35 years and knew the Place Riviera properties to be a swamp. Mr. Luduc told the Tribunal that Mr. Gauthier had compounded the drainage problems in the Place Riviera subdivision by removing the topsoil in the subdivision; the underlying clay does not absorb water. Mr. Luduc explained that he had hired a back-hoe at his own expense to dig a trench to drain water from his property into the river. He stated that Mr. Gauthier should pay all the costs of providing drainage to the Place Riviera properties that he owned.

Krystyna Kowalska

Ms. Krystyna Kowalska told the Tribunal that she lived in the Place Riviera subdivision. Ms. Kowalska explained that there were pools of stagnant water within the subdivision. She stated that Mr. Gauthier was the only person who wished the proposed works to be constructed as a municipal drain in an attempt to avoid assuming all the cost associated with providing adequate drainage for the Place Riviera properties. Ms. Kowalska told the Tribunal that Mr. Gauthier had removed the topsoil in the subdivision which contributed to the existing drainage problems. She stated that Mr. Gauthier had constructed numerous berms and knolls that also contributed to poor drainage. She said that the only beneficiary of the proposed works was Mr. Gauthier. Ms. Kowalska told the Tribunal that Mr. Gauthier should be assessed 100 percent of the cost of providing drainage to his Place Riviera properties.

Rita Bédard

Ms. Rita Bédard told the Tribunal that her property was assessed on the Smith Drain and the proposed Gauthier Municipal Drain. She told the Tribunal that there will be no benefit to her property from the proposed works. Ms. Bédard expressed concern that future assessments for drainage may be levied against her property.

Summations

Mr. Chambers, counsel to Mr. Gauthier made his closing remarks stating that: Mr. Gauthier wished the apportionment of the assessments to be returned to the ratio of 40 percent benefit and 60 percent outlet previous to the determination of the Court of Revision. He reminded the Tribunal of Mr. Pitre’s evidence that the apportionment of assessments was a subjective exercise. Mr. Chambers stated that, in light of the abstractness of allocating assessments, it would be most appropriate to adopt the ratio of 40 percent benefit and 60 percent outlet initially specified by Mr. Pitre in his report. Mr. Chambers argued that the adjustment of assessments made by the Court of Revision appeared to have been arbitrary, his client had not received any practical justification for now having to bear the increase in assessment from other lands. Mr. Chambers stated that the only rationale to the re-apportionment of assessments was to shift more cost to Mr. Gauthier’s properties by apportioning benefit at 70 percent as ruled upon by the Court of Revision. Mr. Chambers told the Tribunal that the state of development on the Place Riviera properties had no bearing on the fact that water from upstream properties would continue to flow onto Mr. Gauthier’s property necessitating the proposed drainage works. Mr. Chamber’s stated that the present inadequate outlet on the Cusson property, contributed to the need for drainage improvements on the Place Riviera properties.

Mr. Lefebvre, Clerk of the Township of Champlain made closing arguments on behalf of the municipality. He sated that Mr. Pitre exercised due diligence in referring to case studies in an effort to find a precedent however no such parallels were available. Mr. Lefebvre stated that the Court of Revision was within its jurisdiction to adjust the apportionment of assessments as it did. Mr. Lefebvre explained that the municipality presently owned some of the streets within the Place Riviera properties as the criteria under an agreement with the subdivision and the municipality had been met. Mr. Lefebvre said that the subdivision was constructed under a registered subdivision plan. He said that all agreements with the municipality and the subdivision were pursuant to the Municipal Act.

The Findings

The Tribunal accepts the evidence of Mr. Pitre P. Eng., that the matter of apportionment of assessments on a drainage works upon numerous residential and agricultural lands is an imprecise task due to the subjective nature of the exercise. It is clear that Mr. Pitre took advantage of the resources at hand to make his determination with respect to apportionment of assessments, specifically; Mr. Pitre became involved with the project in 2003 and made empirical observations with respect to the conditions existent on the affected lands in the watershed to the time of the preparation of his report revised November 10, 2004, amended July 20, 2005; Mr. Pitre was in consultation with the local Drainage Superintendent, Mr. Michel St-Jean and Mr. Sid Vanderveen, Drainage Co-ordinator, Ministry of Agriculture, Food and Rural Affairs with respect to the apportionment of assessments.

The evidence of Mr. Pitre was that benefit to the Cusson property resulting from the proposed works was not as great as it was initially found to be. The Tribunal is convinced by Mr. Pitre’s evidence with respect to the limited benefit to the Cusson property as conditions were observed during typical flood events such as spring run-off. and high river levels . No evidence was presented to indicate that the benefit to the Cusson property, or any other affected lands was significant to warrant a large increase in value or usage, congruent with the ratio of benefit determined by the Court of Revision.

ORDER OF THE TRIBUNAL

Taking into account in their entireties the evidence and submissions presented to the Tribunal, and after careful consideration of the same, the Tribunal orders as follows::

1. The Tribunal orders that the apportionment of assessments be adjusted to reflect the agreement between the Engineer and the appellant as a reasonable ratio proportionate to the respective improvements to the affected lands. The apportionment of assessments for construction of the proposed works shall be adjusted to a ratio of 40 percent outlet and 60 percent benefit.

2. The engineer shall prepare a schedule of assessments amended to the report, pursuant to the above order of the Tribunal.

3. The maintenance schedule for the proposed works shall be based on outlet charges commensurate with the apportionment of outlet assessments, 40 percent of the costs of construction of the works.

Dated at Ottawa, Ontario this 22nd day of March, 2006.