Pleasant View Municipal Drain and Branches (RE), 2009 ONAFRAAT 2

Agriculture, Food and Rural Affairs Appeal Tribunal

Appeal: Pleasant View Municipal Drain and Branches, Township of Laurentian Valley Neutral Citation: 2009 ONAFRAAT 2 Statute: Drainage Act Hearing: October 8, 2008 and December 16, 2008 Date of Decision: January 29, 2009 File No.: 2009-02

In the matter of the Drainage Act, R.S.O. 1990, Chapter D.17, as amended.

And in the matter of: Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Herbert Lavern Liedtke and SHWL Holdings Ltd., in Pembroke, Ontario, under Subsection 48(1)(c) of the Drainage Act from the engineer’s report and under Subsection 54(1) of the Drainage Act from a decision of the Court of Revision on the Pleasant View Municipal Drain and Branches in the Township of Laurentian Valley.

Before: Marthanne Robson, Vice-Chair; Jack Young, Vice-Chair; Corry Martens, Member

Appearances: Herbert Lavern Liedtke and SHWL Holdings Ltd., appellants Delbert O’Brien, counsel to the appellants Steve Webster, P. Eng., witness for appellants Dean Faught, farmer, witness for appellants Roy Reiche, counsel to the Township of Laurentian Valley John Van Gaal, P.Eng., Stantec Consulting Ltd., the engineer who prepared the report. Claude Taillon, Drainage Superintendant for the Township of Laurentian Valley Doug Sitland, Manager of Operations, City of Pembroke Graham Midwinter, Manotick Management and DPC Equipment Leasing Ltd., landowner

DECISION OF THE TRIBUNAL

This appeal was heard in Pembroke, Ontario on October 8, 2008 and continued on December 16, 2008. Mr. Herbert Liedtke and SHWL Holdings Ltd appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 48 of the Drainage Act (the Act) from the Report titled “Pleasant View Municipal Drain & Branches”(the Report) prepared by Stantec Consulting Ltd. and signed by John Van Gaal, P. Eng.(the Engineer) dated January 15, 2008; and under Section 54 of the Drainage Act from a decision of the Court of Revision in the Township of Laurentian Valley (the Township).

Mr. John Baird, Chief Administrative Officer of the Township, 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.

Background

At the hearing on October 8, 2008 it became apparent there were a number of inconsistencies in the Report and procedures under the Act. First, there were a large number of owners within the drainage area that had not been properly served with a notice of hearing due to the Engineer’s use of block assessments for certain properties within the drainage area. In addition, there were properties directly affected by the project that were not granted allowances under the Act, along with a number of other small inconsistencies. Considerable discussion took place on ways to proceed with the project. The Engineer agreed to amend the Report and on the consent of the parties present, the Tribunal issued an order adjourning the hearing to December 16, 2008 and requiring that a Notice of Hearing and a copy of the Tribunal’s order dated November 12, 2008 be sent to all landowners in accordance with the requirements of the Act.

Stantec Consulting Ltd. issued a revised report dated November 13, 2008 along with amended schedules of assessment and allowances dated “11/12/2008”.

In early December, the parties to the hearing, a representative from the City of Pembroke, Manotick Management Ltd. (a major landowner affected by the drainage works), as well as the Engineer met to discuss the assessments identified in the revised Report. As a result of that meeting, it was agreed that the assessments be further revised. This resulted in amended Schedules A, B, C & D dated “12/10/2008”.

At the hearing on December 16, 2008, an Affidavit of Service was presented indicating that all owners within the drainage area had been served a notice of the hearing.

A Revised Engineer’s Report dated November 13, 2008, and a Consent Agreement (including Schedules A, B, C & D dated “12/10/2008”) signed by the major affected landowners agreeing to revised assessments, were filed with the Tribunal.

The Engineer outlined the changes included in the revised Report as follows:

• Revised Report identifies all properties in the watershed area including block assessments.
• Allowances are shown in Schedule “A” for properties missing in previous report.
• Schedule F added to provide “working area” for construction and maintenance in accordance with Section 63 of the Act.
• Drawings have been signed with the professional engineer’s seal.
• Drawing # 2 has been amended to provide a fence around the storm water retention pond.
• Page 16 of Report is now stamped and a sentence at bottom of page added to read, “Per section 63, Drainage Act, the working space is identified in Schedule “F.

Mr. O’Brien advised the Tribunal that, as a result of the Consent Agreement, the appellants would like to withdraw their appeal under Section 48(1) (c) of the Act. (Compensation and allowances)

The Issues

The issues before the Tribunal were:

1. Was there proper service of the Notice of Hearing to all landowners in the watershed including all those in the Block Assessment?

2. What should the assessments be with respect to “Future Lot Charges,” in Schedule A, and how should they be allocated in the Schedule of Assessments?

3. What is the future status of the “Northwest Tile Drain” in this project?

4. Should the columns showing grants and net assessments be excluded from Schedules A, B, C & D of the Report and the Consent Agreement?

5. Is the “Consent Agreement” that was reached by the appellants, the Township of Laurentian Valley, Manotick Management Ltd. and the City of Pembroke, fair and equitable to all parties?

The Evidence and Findings

Issue #1 – Proper Service to all Landowners within the Watershed

At the hearing on December 16, 2008, the Township filed an Affidavit of Service with the Tribunal as proof that all assessed landowners, including those landowners originally identified as part of a block assessment and not previously notified, had been served with notice of the continuation of the hearing. The Engineer testified that a thorough search had been made of all the properties within the watershed and presented a drawing correlating reference numbers on the drawing with each property.

The Tribunal reviewed the Affidavit of Service document and the accompanying reference sketch. The Tribunal finds that a concerted effort had been made to identify all properties and accepts the Affidavit of Service.

Issue #2 – Future Lot Charges

Schedule A of the Report contains an item called “Future Lot Charges” that is not referenced to any particular parcel or parcels of land. Mr. Reiche stated that the Township would upfront the funding for the Future Lot Charges and these costs would be charged out at a later time pursuant to the Town’s development charges by-law at the building permit stage for new development.

The Tribunal heard evidence from the Engineer that the future lot charges have now been increased from $56,973.13 to $73,735.05 as a result of separating out those costs more aligned to land development rather than agriculture. He explained that many of the costs added to development charges relate to storm water management and are associated with the storm water retention pond costs.

The Tribunal expressed concern that the Drainage Act requires that all costs must be assessed against lands or roads only, and that there is no provision to assess a “fund” such as “Future lot Charges”. Following a brief adjournment, Mr. Reiche and Mr. O’Brien suggested that in order to address this issue, that the Tribunal assess a Special Assessment of $73,735 against the Township lands which may be recoverable through development charges against future lot development.

Mr. Sitland stated that he would be agreeable to this providing none of the special assessment is assessed against the City of Pembroke. Mr. Midwinter stated that he would be agreeable to the suggestion of Mr. Reiche and Mr. O’Brien.

The Tribunal accepts this solution as an appropriate manner to fund a drainage project to take into account future development potential. As such, the Tribunal will order that the Township is responsible for this assessment and that the Township may recover these costs as it sees fit.

Issue #3 – Status of Northwest Tile Drain

Mr. O’Brien explained that it was originally thought that the Northwest Tile Drain was on Township property and that it needed maintenance now. After further review, it was found that it was located on land owned by Mr. Liedtke. In addition, it was found that the drain was in good condition and required no maintenance work. Consequently, since no work is anticipated to be required on the drain, future administrative costs will be reduced.

Mr. O’Brien stated that it is important that the Northwest Tile Drain be legalized as being part of the Pleasant View Drain, and that Mr. Liedtke would be content to assume 100% of the costs for any future maintenance work that may be required. In response to a question about what it means for the drain to be legalized and who is responsible for maintenance and costs, Mr. O’Brien clarified that by upgrading the drain to a Municipal Drain, the drain would become the responsibility of the Municipality to insure that this drain is maintained. However, Mr. Liedtke would assume 100% of any future maintenance costs. The division of maintenance costs could be dealt with when his land gets subdivided as provided for in Section 65 of the Act.

The Engineer stated that it was his idea to include the Northwest Tile Drain in his report since the drain is essential to provide a deep outlet for tile drains on Lots 21 and 22 which is an important part of the drainage system. He explained that he arrived at an original provisional cost of $20,000 for this drain on the understanding that it required repairs. He acknowledged that he may have over estimated this cost and if the cost is now nominal, Mr. Liedtke’s assessment would also be nominal.

In response to a question about the costs for design for the Northwest portion of the drain, the Engineer stated that the $9,000 administrative cost would be absorbed by the Township and the cost redistributed to everyone. He further indicated that Township roads, Mr. Liedtke and Mr. Midwinter would be paying 60% to 70% of this cost.

The Consent Agreement does not include a Schedule of Assessment for the Northwest Tile Drain.

The Tribunal accepts this proposal. Since there are no construction costs associated with this drain, the Tribunal will Order that the $20,000 “Provisional Costs” item in the Cost Estimate in the Report be deleted and that the total cost of the project be reduced from $351,225 to $331,225.

The Tribunal will further order that any future maintenance costs be assessed 100 % to Lots 20 & 21 of Concession 2.

Issue #4– Grants and Net Assessments

The matter of considering grants in the decision process was discussed at the hearing on October 8, 2008 and the Engineer was asked to remove the reference to grants from the Schedules. However, the revised report included grants.

In response to a question about the inclusion of Schedule “D” in the Report, the Engineer explained that this Schedule, which includes grants and allowances, was included for information purposes for the key landowners. Mr. O’Brien and Mr. Reiche agreed that the assessments in the Report have to be exclusive of any grants that may or may not be allowable.

The Tribunal finds that decisions made by the Engineer and the parties to the “Consent Agreement” in considering “possible grants”, are inappropriate, especially when it has been stated by the Engineer that this project has a large land development component. While the discussion centered on removing Schedule D, the Tribunal finds that it is essential to retain Schedule D, as modified below, as it outlines the allocation of “Future Maintenance”.

The Tribunal will order that the columns referring to “grants” and “net assessment after grant” be removed from Schedules A, B, C & D.

Issue #5 – Consent Agreement

Mr. Reiche stated that after the Tribunal hearing of October 8, 2008, an informal meeting of the major landowners involved with the drainage works and Mr. Van Gaal was held to discuss proposed changes to the assessments in the Engineer’s Report. The meeting resulted in the parties, Herbert Lavern Liedtke, SHWL Holdings Ltd., The Corporation of the Township of Laurentian Valley, as well as The Corporation of the City of Pembroke and one other major landowner, Manotick Management Ltd., agreeing to sign a Consent Agreement which was filed with the Tribunal.

Mr. Sitland, Manager of Operations for the City of Pembroke indicated that there was no legal mechanism for him to consent to the document on behalf of the City, but that he was supportive of the agreement and would be making a recommendation to the City’s Operations Committee the evening of December 16 to sign the Consent Agreement. The Tribunal was subsequently advised that the City of Pembroke signed the Consent Agreement on January 13, 2009.

In summary, the Consent Agreement filed with the Tribunal included changes to the assessments set out in the Schedules to the revised Engineer’s Report, and requested that the drainage assessments as set out in Schedules A through E in the revised Engineer’s Report be replaced with Schedules A through D in the Consent Agreement. The agreement also provided that Herbert Lavern Liedtke, the present owner, or any successors on title, of Lots 20 and 21, Concession 2, FAL, geographic Township of Pembroke, shall be responsible for all costs relating to the future maintenance of the North West Tile Branch.

Mr. O’Brien stated that the only landowners significantly affected by the changes to the assessments were the parties to the Consent Agreement.

The Tribunal notes that as a result of the revised Report, assessments for some landowners will increase. The Tribunal considered ordering another revision to the Report to reallocate assessments, but this would only increase the overall cost of the project and would not be of benefit to the landowners as a whole.

The Tribunal is in general agreement with the drainage assessments in the Consent Agreement and will order that Schedules A, B, C & D, dated “10/12/2008”, as amended to delete the reference to grants, be inserted in the provisional by-law as the Schedules for Assessments, Allowances, and Future Maintenance.

ORDER OF THE TRIBUNAL

As this Section 54 appeal deals only with the issue of assessments, the Tribunal makes no other order with respect to other aspects of the report except as follows:

1. The provisional by-law 08-04-393 shall be amended by replacing the Engineer’s Report with the amended Report dated January 15, 2008, and that Schedules A, B, C and D dated December 10, 2008, as amended by item 2 below be included as part of the amended Report.

2. The Engineer is directed to amend Schedules A, B, C & D, dated “10/12/2008”, to delete the columns referring to grants and net assessment. In addition, these Schedules shall be marked with the statement, “As amended by the Tribunal decision dated January 29, 2009.” Copies of these amended Schedules shall be distributed with this decision by the municipality to all assessed landowners, and filed with the Tribunal.

3. The Engineer’s Report shall be amended to change the provisional costs on page 14 from $20,000 to 0, and the total estimated cost on page 14 be changed from $351,225.00 to $331,225.00.

4. The reference to future lot charges on Schedules A & D shall be charged as an assessment against the roads in the Township of Laurentian Valley in the amount of $73,735.05, which may be recoverable by the Township as it sees fit.

5. The Northwest Tile Drain shall be a drain under the Drainage Act and shall be maintained by the Township of Laurentian Valley with future maintenance costs charged to Lots 20 and 21 of Concession 2 – Roll No. 403 2100 (Herbert Lavern Liedtke).

6. The non-administrative costs of the Township for these appeals shall form part 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.

Dated at Ottawa, Ontario this 29th day of January, 2009