Cedar Bank Municipal Drain (Re), 2007 ONAFRAAT 18

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, chemin Stone Ouest

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:

Cedar Bank Municipal Drain

Township of Ashfeild-Colborne-Wawanosh

Cedar Bank Municipal Drain (RE) 2007 ONAFRAAT 18

STATUTE:

Drainage Act

HEARING:

May 29, 2007

DATE OF DECISION:

June 7, 2007

2007-18

NEUTRAL CITATION:

2007 ONAFRAAT 18

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 Ludmila Dejmek, Cambridge, Ontario, Jim Martin, Dorothy Brindley, and Helmut Funke all of Goderich, Ontario and Violet England, London, Ontario under Section 54 of the Drainage Act from a decision of the Court of Revision on the Cedar Bank Municipal Drain 2006 in the Township of Ashfield-Colborne-Wawanosh and from Jim Martin, Dorothy Brindley, and Helmut Funke all of Goderich, Ontario under Subsection 48(1)b from the engineer’s report on the Cedar Bank Municipal Drain 2006in the Township of Ashfield-Colborne-Wawanosh. AND IN THE MATTER OF: A request by Stephen Herman and Leanne Landers both of Milverton, Ontario under Section 100 of the Drainage Act that the time in which they may initiate an appeal under Section 54 of the Drainage Act from a decision of the Court of Revision on the Cedar Bank Municipal Drain 2006 in the Township of Ashfield-Colborne-Wawanosh be extended and that the Tribunal accept their appeal.

Before: Kirk Walstedt, Vice Chair; Jack Young, Vice Chair; Ron Gelderland, Member

Appearances:

Jeff Dickson, P.Eng., engineer who prepared the Report

Jim Martin, appellant

Helmut Funke, appellant

Barbara Herman, representative of Leanne Landers and Stephen Herman, appellants

Ludmila Dejmek, appellant

Violet England, appellant

Ben Van Diepenbeek, Reeve, Township of Ashfield-Colborne-Wawanosh

DECISION OF THE TRIBUNAL

This appeal was heard near Goderich, Ontario on Tuesday, May 29, 2007. Several landowners appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54 of the Drainage Act (the Act), seeking reductions in the assessments to their properties, which had been adjusted by the Court of Revision. In addition, three landowners appealed under Section 48 of the Act, as they sought changes to the design of the project contained in the engineer’s report, prepared by R.J. Burnside & Associates Limited, titled “Final Engineer’s Report Cedar Bank Drive Municipal Drain 2006” and dated October 23, 2006 (the Report). Reference is also made to the “Preliminary Report” datedApril 20, 2006.

Mr. Mark Becker, Clerk of the Township of Ashfield-Colborne-Wawanosh (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 48(1)(b) 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,

(b) the drainage works should be modified on grounds to be stated;

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

Preliminary Issues

Mrs. Barbara Herman explained that the Herman/Landers appeal was filed late because a notice that landowners received from the Municipality indicated that people who had appealed to the Court of Revision could appeal to the Tribunal and it was not clear until the Tribunal issued a Notice of Hearing that other landowners could appeal as well.. She explained that the assessment on the Herman/Landers property (Roll No. 21-16) was increased by the Court of Revision.

Mrs. Violet England said she had two properties (Roll Nos. 21-26 and 21-29) and that she wished to appeal the assessment on the property that was a vacant lot but not the property which had a cottage on it. Mrs. England had not appealed her assessment to the Court of Revision. It was explained that her husband had been very ill.

There were no objections to the Tribunal hearing the Herman/Landers and England appeals and the Tribunal allowed the appeals to be heard.

Mr. Ben Van Diepenbeek, Reeve, indicated the Municipality would pay the assessment against Cedar Bank Drive and David Drive and would not charge these costs back to cottagers in order to ease their financial burden. He explained the Municipality did not build or maintain the roads and did not want this action construed as it taking responsibility for these roads.

The Background

Mr. Jeff Dickson, P. Eng. explained that the Cedar Bank Drive Municipal Drain – 2006 was designed in response to a petition by landowners dated June 27, 2005 and a site meeting was held on August 26, 2005. He said the drainage problem was causing the erosion of a gully and de-stabilizing a private road.

Mr. Dickson said he commissioned a slope stability study as well as an erosion control study on the lands that were being eroded and that he prepared a preliminary report with three alternative solutions. He explained that he was directed to pursue Alternative # 2 and that was what he designed in his final report. He explained the project was designed to safely conduct water from lands abutting David Drive to outlet in Lake Huron. He said it was proposed that the following work be included in this project:

• an existing culvert under David Drive
• 100 metres of open channel in the gully, rip raped to provide slope stabilization and erosion protection
• an existing undersized culvert on the Boyes property (Roll No. 21-7), allowing for overflow in heavy rainfall events
• reinforce the existing headwall at the head of the Boyes culvert and construct an overflow spillway
• an open channel to outlet in the lake
• reinforce an unstable part of Cedar Bank Drive

Mr. Dickson explained that he used the Todgham method to assess the costs of the proposed drainage works to landowners. He split the drain into four sections. He said there were few costs to be incurred in the lower two sections but the would require some rip rap around a pipe which he assessed as outlet liability. He explained the bulk of the work to be done was in section 3 – the gully – and he subtracted specific costs to be assessed as benefits to individual properties from the gross cost, then split the balance using a ratio of 28:72 statutory benefit:outlet liability. For the fourth section assessed the cost of rip rap at David Drive as a special assessment to the Municipality and split the balance using a 40:60 statutory benefit:outlet liability ratio.

Mr. Dickson explained that the specific costs on Section 3 of the drain were assessed to landowners using the roadways as follows:

• $3,500 to each of 11 properties relying on Cedar Bank Drive for direct access to their properties;
• $500 to each of 7 properties using Cedar Bank Drive for rear access to their lots
• $500 to each of 40 properties relying on David Drive to access their properties.

The Issue

The issues before the Tribunal were:

1. Should the design of the drainage project be modified?
2. Should the outlet assessments on the Funke property (Roll No. 21-1-25) and the Martin/Brindley property (Roll No. 21-2) be decreased?
3. Should the benefit assessment on the Dejmek property (Roll No. 21-18) be decreased?
4. Should the benefit assessment on the England property (Roll No. 21-26) be decreased?
5. Should the benefit assessment on the Herman/Landers property be reduced to $4,000, as described in the assessment schedule in the Report?
6. Should the assessment on lands owned by the Municipality be increased?
7. Should the Boyes property be charged a benefit assessment for having their existing culvert maintained in the future by the project?

The Evidence

Funke/Martin Appeals

Mr. Helmut Funke and Mr. Jim Martin, owners of agricultural lands in the watershed, made a joint presentation to the Tribunal. Mr. Funke said they were pleased with changes to the assessment schedule made by the Court of Revision but sought further reductions in the assessments to their properties.

Mr. Funke explained that they preferred Alternative # 1 in the preliminary report to Alternative # 2, but that if they were unsuccessful in their Section 48 appeal they felt their assessments were too high.

Mr. Funke pointed out that a report by AquaLogic Consulting identified the causes of the erosion of the gully adjacent to Cedar Bank Drive as cutting of trees, installation of a retention wall, improperly installed tile and improper placement of the culvert under David Drive. He submitted the erosion was largely caused by actions of cottage owners. Mr. Funke said the culvert under David Drive concentrated the flows from upstream lands and contributed to the erosion of the gully. He said removing trees from the gully destabilized its banks. He said a tile just downstream of the culvert from David Road was constantly draining onto the road. Mr. Funke submitted photographs which he had taken in late April 2007.

Mr. Funke pointed out that the Report (Exhibit 2, p.10) indicated that systematic tile drainage of agricultural land on Lot 1 was not taken into consideration in designing the drainage works. He said the engineer had been directed to investigate whether a retention pond was needed upstream of David Drive and submitted that it was not as it was not recommended in the Report.

Mr. Funke submitted that upstream landowners had riparian rights under the common law to drain into a natural watercourse and the local Conservation Authority had identified the existing waterway as a natural watercourse.

Mr. Funke also pointed out that the preliminary report indicated that the banks of Cedar Bank Drive were of a soil type that was subject to “pore water pressure” which would be a problem if they were improperly drained.

With regard to their appeals regarding the design of the proposed drainage works, Mr. Funke said the cottagers needed drainage to provide safe access to their properties and that Alternative # 1 in the preliminary report would achieve this without using the processes established under the Act. He suggested this would be more appropriate as the lands upstream of David Drive were not contributing to the drainage problem. He said that Alternative # 1 would deal with the destabilized bank along Cedar Bank Drive and the erosion in the gully would stabilize over time. He pointed out that Alternative #1 was a less costly alternative.

In response to questions from the other parties, Mr. Funke indicated:

• He agreed that water flowed from his land in Lot 1 into the gully.
• Run-off from upstream lands would have contributed to 1.2 metres of perching seen at the outlet of the David Drive culvert, but only because it was a concentrated flow from the culvert.
• He was not aware of any legal outlet under statute law; he had a right to an outlet through riparian rights under the common law.
• He agreed that a flow rate of 0.3 metres/second was relatively insignificant in a culvert that could handle 5.0 metres/second.
• He understood that Alternative # 1 could not be pursued under the Act.
• He understood from the Report that cottagers on David Drive benefited from the project because if access to their properties could not be maintained their properties would lose value.

In response to questions from the Tribunal, Mr. Funke verified that he farmed his own property which he purchased in January 2005 and that water from Highway 21 flowed onto his lands.

Herman/Landers Appeal

Mrs. Herman told the tribunal that it had been confirmed that the cleared agricultural lands in Lot 1 had underdrainage that discharged into a stream upstream of the David Drive culvert. She said that equipment had been used to clear the tiles of debris earlier in the year. Mrs. Herman said erosion was caused by increased flow from upstream lands, loss of vegetation in the ravine, the steep slope of the ravine and the soil type.

Mrs. Herman said that cottagers had cleared collapsed brush and debris from the gully each year and had arranged for a retaining wall to be built to stabilize Cedar Bank Drive. She said the wall had collapsed after one winter. She said they petitioned for drainage under the Act on the recommendation of the Municipality.

Mrs. Herman said the Court of Revision had already considerably reduced the assessments to the agricultural lands and she questioned the equity of this decision. She said that cottagers along Cedar Bank Drive felt that an assessment of $3,000 - $3,500 would be fair, but accepted the assessment of $4,000 to their properties in the Report.

Mrs. Herman said she did not agree that David Drive and Cedar Bank Drive were private roads; she thought they were public roads and argued that the assessment to the Municipality should be higher. She said that the Municipality should be ordered to restore Cedar Bank Drive to the point where it does not have liability issues, then return it to unassumed road status.

Mrs. Herman said she understood there was a benefit to having safe access to the Herman/Landers property but said that the cottagers share of the assessed costs relative to the Municipality’s share was unfair as the Municipality owned the roads.

In response to a question from Ms. Dejmek, Mrs. Herman said she passed around the petition and thought all the landowners were notified of meetings.

In response to questions by the Tribunal, Mrs. Herman said she had received information from Mr. Dickson as to how the cost of drainage works were usually assessed and thought $3,000 - $3,500 was reasonable using this as a guideline.

England Appeal

Mrs. England said it was Lot 26 (Roll No. 21-29) that was the subject of her appeal. She explained that this was an un-serviced lot with no water or hydro and no buildings. She said no one needed to use the road to access this lot and it was not receiving a benefit from the proposed drainage works. Mrs. England confirmed that she had no complaint about her assessment on the lot where she had her cottage.(Roll No. 21-26)

In response to a question from Mr. Dickson, Mrs. England said she presumed that she could build on the vacant lot.

Dejmek Appeal

Mrs. Dejmek referred the Tribunal to a letter she had written to the Court of Revision dated November 28, 2006 (Exhibit 10).

Mrs. Dejmek said she was not invited to the original site meeting but was subsequently assessed a benefit assessment on the proposed drainage works. She said the culvert on David Drive was big enough to carry water in a 100 year storm event so the cottagers on David Drive did not require the proposed drain. She said she had once had right of way access to her property from Cedar Bank Drive but that when it was lost she had to build her own road to access her cottage. She said she did not see why she should now contribute to a project that benefited Cedar Bank Drive.

In response to a question from Mrs. Herman, Mrs. Dejmek said if there were ever a problem with the David Drive culvert she would pitch in and have it fixed.

Engineer’s Case

Mr. Dickson told the Tribunal that the problem to be solved by the proposed drain was primarily a drainage problem, as access to cottages would not be threatened were it not for inadequate drainage of the area.

Mr. Dickson said he did not recommend Alternative # 1 in the preliminary report as it would require running water through an open ravine at a 4% gradient, a culvert at a 4% gradient then eventually through a channel at a 10% gradient before returning to a 4% gradient through the culvert on the Boyes property. He explained that the capacity of the David Drive culvert was 5.0 cubic metres/second and the capacity of the Boyes culvert was just under 2 cubic metres/second. He said Alternative # 1 would install piping adjacent o the failed part of Cedar Bank Drive and provide an overflow. He said it could be engineered but would not be the best option from a hydrological standpoint. Mr. Dickson clarified that Alternative # 1 could be constructed under the Act but that he would not design a drain using Alternative # 1. He acknowledged that it was cheaper than Alternative # 2 but still recommended against it.

With regard to lack of notification of meetings, Mr. Dickson explained that the petitioners were invited to the on site meeting, as that was required by the Act, and that the upstream agricultural land owners were also invited. He said that upon looking at the area and the extent of work required it became apparent that other landowners should also be involved and they were notified of further meetings – the meetings to consider the Preliminary Report and the meeting to consider the Report. He said he had met with individual groups of landowners at their request but that these were not meetings required to be held under the Act. Mr. Dickson said he would have met with Mr. Martin and Mr. Funke if they had asked to meet with him and would have answered letters if they had been addressed to him.

Mr. Dickson said that at the meeting to consider the Preliminary Report Council of the Municipality asked him to investigate the use of a storm water retention pond to reduce flows through the David Drive culvert. He said he did investigate this but that a rainfall would have to be in excess of a 100 year storm event before a retention pond was needed and he did not include one in his design. He said he did include a sub-drainage system on the south side of Cedar Bank Drive at the suggestion of Mr. Martin. He said this was a good idea with road construction and could be done at a minimal cost.

Mr. Dickson said that he consulted with a fellow engineer – Andy McBride, P.Eng. – about his assessment methodology as Mr. McBride had over 30 years experience and had designed similar drains in the local area. He said he also consulted two Tribunal decisions on similar drainage projects. Mr. Dickson said that on a Huron Sands project in the early 1980s the engineer on the project assessed 40% of the cost to upstream landowners, the landowners sought a reduction on the grounds that it was an erosion problem and the Tribunal sided with the engineer. He said at a hearing held in 1998 on a similar situation involving the Hayter Municipal Drain the Tribunal increased the assessment to upstream farm properties to 50% of the total cost of the project, from 40% which was assessed by the engineer.

With regard to the England appeal, Mr. Dickson said there were several other lots that did not have cottages on them that were assessed the same as the England property.

Mr. Dickson said that in looking at the Funke photographs he could see that attempts had been made to privately deal with the drainage problem but that these attempts had failed. He said the collapsed retaining wall did not contribute to the drainage problem, rather it collapsed because of the drainage problem. He said it looked like trees had been cut after they had fallen rather than having been deliberately removed because there were still stumps visible in the valley. He said he thought a tile that outlets on the south side of Cedar Bank Drive was a footing tile that would be picked up by the proposed sub-drainage system.

In response to questions from landowners, Mr. Dickson indicated:

• The retaining wall was installed after the petition for drainage was filed and he made it clear to the landowners involved that they installed it at their own risk.
• He guessed approximately 25 people were invited to the on site meeting. Mrs. Dejmek was not required to be notified and was not in fact notified of that meeting.
• The majority of petitioners did not object to Alternative # 2.
• Landowners who use David Drive will benefit from the David Drive culvert being made part of the drainage project and being maintained in perpetuity.

In response to questions from the Tribunal, Mr. Dickson indicated:

• The culvert on the Boyes property was constructed in 2000 and a headwall added in 2001.
• At present, if the Boyes culvert were to wash out the landowner would have to replace it. If the Report is adopted the Boyes culvert will be maintained by the Municipality and the cost assessed to the landowners as per the assessment schedule in the Report.
• He provided an allowance of $2,500 for the existing culvert, based on depreciated value of the materials and the fact that it was undersized. An allowance was also provided for anticipated damages as there is no doubt that at some point water flow will exceed the culvert capacity.
• He stated that having the existing culvert maintained by the project would be a benefit to the landowners (Boyes).
• There is a foot or more of cover on the Boyes culvert.
• The culvert on the Boyes property only benefits that property. Mr. Boyes uses it to cross what used to be a gully on his property.
• Looking at the gross assessment to agricultural land divided by the total cost of the project the agricultural lands on this project were assessed approximately 30% of the cost.
• Where 75 of 90 acres being drained are agricultural the agricultural lands must bear some responsibility for safely removing the water.
• He stood by his assessments.

Summations

Mr. Funke told the Tribunal that he and Mr. Martin had an outlet under the common law and no portion of the cost of the drainage works should be charged to them. He reminded the Tribunal that agricultural lands were not specifically taken into consideration in designing the drain. He said that the lands that gained value from this project were the properties gaining road access.

Mr. Funke asked the Tribunal to order the Council of the Municipality to repeal its bylaw and instead pursue Alternative # 1 and pursue safe access to the cottages without using the Act. Alternatively he asked that all the rip rap work along the gully be eliminated in order to reduce the total cost of the project by $45,000.

Mr. Funke indicated it would also be acceptable to have the project built as designed, but to reduce the outlet assessments by a further $18,750 beyond the reductions made by the Court of Revision. He said this could be assessed as a special benefit over the properties that required a safe access via David Drive and Cedar Bank Drive. He said the balance of the outlet charges could be spread over all the properties within the drainage area, except the last property that fronts on the lake.

Mrs. Herman said she wanted the Tribunal to reverse the Court of Revision decision which increased the assessment to the Herman/Landers property to $5,000 from $4,000.

Mrs. England said she had not been aware that there were other vacant lots in the drainage area. She said her lot drained away from the gully and asked that the assessment on her vacant lot be reduced.

Mrs. Dejmek said that the original assessment of $500 was a minimal amount but she was concerned with ongoing maintenance costs. She said she was not convinced that there was any benefit to her property and appealed as a matter of principle.

Mr. Dickson said he made several attempts before he finalized his assessment schedule. He acknowledged that the court of Revision had changed his assessments and pointed out that there were landowners appealing because they felt the Court of Revision did not reduce their assessments enough and others who felt that it had gone too far.

The Findings

The Tribunal accepts the judgement of the Engineer that Alternative # 2 is the most cost effective way to provide a lasting solution to the stabilization of the gully and Cedar Bank Road.

The Tribunal reviewed the assessments on the Funke property (Roll No. 21-1-25) and the Martin/Brindley property (Roll No. 21-2) as adjusted by the Court of Revision. The Tribunal accepts in part the arguments of these landowners and finds that these outlet assessments should be further reduced.

The Tribunal finds that the assessment on the Herman/Landers property (Roll No. 21-16) as adjusted by the Court of Revision is fair. This property and others in a similar situation rely on both David Drive and Cedar Bank Drive for access. This drainage works will ensure that access is maintained in perpetuity. This is a significant benefit to these properties.

Similarly, the Dejmek property (Roll No. 21-18) relies on David Drive for access. Under the Report the culvert under David Drive will be maintained thereby ensuring that this property can be accessed in the future.

With regard to the vacant England property (Roll No. 21-26), the Tribunal finds that the assessment is fair. The Tribunal notes that the assessment is based on the value of the drainage works to the property itself, not to any improvements to the property. The evidence was that this lot benefits from improved access. While the landowner may not currently need to access this lot by road, it could be developed in the future. Mrs. England’s vacant lot is not treated any differently than other vacant lots in the watershed.

The Tribunal reviewed the assessments to the Municipality as amended by the Court of Revision. The Municipality is only a landowner on this project as the roads have not been assumed by the Municipality. The assessment to the municipal land is confirmed.

The Tribunal finds that the engineer has not adequately assessed the Boyes property (Roll No. 21-7). The Tribunal finds that this property will benefit from the ongoing maintenance of a culvert that benefits only this property. The Tribunal values this benefit at $2,500.

ORDER OF THE TRIBUNAL

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

1. The appeals under Section 54 by Ludmila Dejmek, Violet England, Stephen Herman and Leanne Landers are dismissed.
2. The appeals under Subsection 48(1) (b) of the Act by Helmut Funke, Jim Martin and Dorothy Brindley are dismissed.
3. The decision of the Court of Revision is confirmed with the modifications shown below: i) the outlet assessment on the Funke property (Roll No. 21-1-25) is decreased from $20,660 to $18,330. ii) the outlet assessment on the Martin/Brindley property (Roll No. 21-2) is to decreased from $1,500 to $1,330. iii) the total benefit assessment on the Boyes (Roll No. 21-7) property is to be increased from $5,000 to $7,500.
4. Before final passing of the by-law, the Clerk of the Municipality shall modify the assessments in Appendix C of the Report as amended by the court of Revision and as described as in item three of this order.
5. 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 Maidstone, Ontario this the 7th day of June, 2007.