Mindemoya Drain (RE) and Yonge Street, 2010 ONAFRAAT 37

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 ON N1G 4Y2 Tel: 519 826-3433, Fax: 519 826-4232 Email: appeals.tribunal.omafra@ontario.ca

Guelph ON N1G 4Y2 Tél. : 519 826-3433, Téléc. : 519 826-4232 Courriel : appeals.tribunal.omafra@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Mindemoya Drain and Yonge Street Reconstruction Municipality of Central Manitoulin

Mindemoya Drain (RE) and Yonge Street 2010 ONAFRAAT 37

STATUTE:

Drainage Act

HEARING:

September 1, 2010

DATE OF DECISION:

October 28, 2010

2010-37

NEUTRAL CITATION:

2010 ONAFRAAT 37

MINDEMOYA DRAIN AND YONGE STREET RECONSTRUCTION

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 Perry Anglin, of Mindemoya, Ontario, under Section 48(1) of the Drainage Act from the engineer’s report and under Section 54(1) of the Act from a decision of the Court of Revision; and by Lois Lockhart and Maja Mielonen, of Mindemoya, Ontario, under Section 48(1) of the Drainage Act from the engineer’s report on the Mindemoya Drain and Yonge Street Reconstruction, in the Municipality of Central Manitoulin.

Before:

Susan Whelan, Vice-Chair; Jack Young, Vice-Chair; Sharon Weitzel, Member

Appearances:

Lois Lockhart – Appellant and landowner

Maja Mielonen – Appellant and landowner

Guy Nielen – Partner of Maja Mielonen

Aimee Anglin – Spouse of Perry Anglin, Appellant

John Kuntze – Engineer, K. Smart Associates Limited

Robert Sheach – Drainage Superintendent for Municipality

Richard Stephens – Reeve of Municipality

Wayne Legge - Landowner

DECISION OF THE TRIBUNAL

This hearing was held in the War Memorial Community Centre in the Municipality of Central Manitoulin (the “Municipality”) in Mindemoya, Ontario on September 1, 2010. Lois Lockhart and Maja Mielonen appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal under Section 48(1); and Perry Anglin appealed to the Agriculture, Food and Rural affairs Appeal Tribunal under Sections 48(1) and 54(1) of the Drainage Act (the “Act”) from the Engineers Report titled “Mindemoya Drain & Yonge Street Reconstruction” (the “Report”) dated November 20, 2009, prepared by K. Smart Associates Limited, and from the decision of the Court of Revision held February 6, 2010. John Kuntze, (the “Engineer”), a professional engineer with K. Smart Associates Limited, was designated under Section 8(2) of the Act with the overall responsibility of the Report.

Ms. Denise Deforge, the Deputy Clerk of the Municipality of Central Manitoulin, 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. Ms. Deforge filed an affidavit of service with the Tribunal as proof that all parties have been served with notice of this hearing.

Statutory Context

Section 48 (1) of the Drainage Act states:

"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, (a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof; (b) the drainage works should be modified on grounds to be stated; (c) the compensation or allowances provided by the engineer are inadequate or excessive; (d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed under Section 3, 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."

Section 54 (1) of the Drainage Act states:

"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."

Overview

John Kuntze, the Engineer, presented a detailed overview of the Report.

This project was initiated by a petition dated November 24, 2008 in accordance with Section 4 of the Act and signed by Perry Chatwell, the Road Superintendent for the Municipality.

A second petition dated May 25, 2009 was filed by the Mindemoya Missionary Church after the main investigation for the Mindemoya Drain had commenced. K. Smart Associates Limited was directed to include the second petition in the Report; however, at the meeting to consider the Report, the Municipality received a request from the Mindemoya Missionary Church to have their petition withdrawn.

A third petition, dated July 17, 2009, was filed and signed by Perry Chatwell, the Road Superintendent, and by Jeff and Lisa Turek. This petition requested improved drainage for an area immediately west of this project. This petition is not part of the Mindemoya Drain Report, however, the Engineer wanted the Tribunal to note that this petition came forward in July, towards the end of the completion of the investigation for the Mindemoya Drain Report.

K. Smart Associates Limited was first involved with the project in 2007, when the firm provided engineering services for the reconstruction of Yonge Street. During the investigation it was recommended by K. Smart Associates Limited that a proper storm drainage system should also be provided for Yonge Street and that this storm drain would need a proper outlet. The Engineer explained that the Municipality accepted the advice of K. Smart Associates Limited and decided to proceed under the Drainage Act to obtain the proper outlet, and therefore, the Road Superintendent signed a petition in November of 2008.

The primary objective of the Mindemoya Drain Report was to provide a proper, legal outlet for the storm drains proposed for the reconstruction of Yonge Street.

For descriptive purposes, the Mindemoya Drain Report can be divided into three parts:

1. The Mindemoya Main Drain begins at Duke Street and extends northward across King Street (Highway 542) and Douglas Drive to outlet into a sinkhole just south of Hare's Creek. In overflow situations the water overflows the sinkhole and outlets directly into Hare’s Creek. This section of the project relates directly to the drainage appeals and this decision, as the drain provides the outlet for the storm sewers outlined in the next paragraph, and also provides the drainage outlet for the reconstruction of Yonge Street.
2. The storm sewers consist of the branch drains shown on drawing # 5 of the Report. They consist of the Yonge Street Storm Sewer System, the Duke Street East Branch, the Duke Street West Branch, the Thorne Street West Branch, the Missionary Branch, and the Anglin Branch. Although the storm sewer system is part of the Mindemoya Drain, none of these branches are the subject of this hearing.
3. The Report also provides for the Yonge Street Road Reconstruction, including sidewalks and curbs, which will be completed after the drain is finished. None of these works are the subject of this hearing.

The Issues

1. Should the allowances for damage and loss of access be amended?

2. Should the location of the maintenance access on the Lockhart property be changed?

3. Should the handling of the excavated soil on the Mielonen property be clarified in the Report?

4. Should the sinkholes within the watershed be protected and maintained as part of the project?

5. Should the Schedule of Assessments be modified to reflect the removal of part of the watershed from the project?

The Mindemoya Main Drain

Commencing on the south side of Duke Street, the Mindemoya Main Drain consists of a closed pipe drain flowing north between the houses on the north side of Duke Street. There is a section of open channel at the rear of the residential properties. Another existing open channel from the east enters the drain at the rear lot line. The Mindemoya Main Drain continues as a closed pipe drain between the houses on the south side of King Street and across King Street. The closed pipe drain extends past the Mielonen house on the north side of King Street. The present drain on the Mielonen property is a winding open channel on the easterly portion of Ms. Mielonen’s property. The Report proposes to straighten the drain using a closed pipe drain along the east side of their house which removes a large section of the open channel. The Report recommends only improvements to the open channel on the north part of the Mielonen property because there is a fairly well defined existing ditch. The Report proposes a new culvert for Douglas Drive and recommends minor improvements to the existing open channel on the Lockhart property which has reasonably good gradient. The normal outlet is a sinkhole just south of Hare’s Creek. The water drains into the sinkhole until it exceeds the capacity of the sinkhole, and then it overflows to the north into Hare’s Creek.

The Engineer stated that in the Mindemoya area, a sinkhole is a very common way to discharge water. The water enters a sinkhole and travels through the fractured limestone into the ground water.

The Report recommends that a cut be made from the west side of the sinkhole through a rock ridge to allow the overflow water to discharge into Hare’s Creek. It is the Engineer’s opinion that this will not change the current flow into Hare’s Creek, but it also should not aggravate the problem.

Cost Estimate

The Engineer provided a cost estimate summary for the Report:

Allowances $30,400

Construction $1,093,500

Engineering for report $235,000

Engineering for construction $140,000

Other admin costs $69,500

Total estimated cost of the project $1,568,400

Assessments

The Engineer explained that the assessments outlined on page 46 of the Report assessments are not the major focus of the appeals before the Tribunal.

The Engineer outlined the distribution of the cost of the project as follows:

Highway special assessment $118,000

Municipal road construction assessment $565,200

Municipality drainage assessment $713,400

Landowners drainage assessment $171,800

Total Project Assessment $ 1,568,400

The Engineer explained that there was an external watershed area west of Mindemoya that was assessed in the Report. It was initially assessed a small part of the cost of the Mindemoya Drain because the water from that watershed could overflow into the Mindemoya Drain when the sinkholes in that area could not handle the flow, and that is why Mr. Anglin’s lands were assessed in the Report. The Engineer indicated that the lands to the west are now the subject of the third petition and will be dealt with in a separate report.

In response to a question of clarification from Ms. Lockhart, the Engineer acknowledged that the Report was originally drafted without recognition that her property was one parcel of land. The Engineer explained that there were two roll numbers, indicating two pieces of land and that the engineers and the Report relied on the information from the assessment office in accordance with the Act.

Evidence & Findings

1. Anglin Appeal

Mrs. Aimee Anglin read a statement prepared by her husband, Mr. Perry Anglin.

Mrs. Anglin stated that it was apparent that the Tribunal would not consider adjourning the hearing even though her husband could not be present due to very serious health reasons. In order to simplify the proceedings, she stated that her husband wished to withdraw his appeal solely because he cannot properly present it. She further indicated that his case depended on evidence to be adduced from the record and, more importantly, from various witnesses. Mrs. Anglin left the meeting room without taking questions.

The Tribunal informed the parties present that it did receive a letter from Mr. Anglin on August 20th, 2010, and that the Tribunal Coordinator had replied providing information to Mr. Perry Anglin about the proper process to request an adjournment and that he could have someone represent him at the hearing if he wished. The Municipality did not consent to the adjournment and Mr. Anglin did not bring a motion prior to the commencement of the hearing for an adjournment. The Tribunal regrets Mr. Anglin’s current health situation and notes that the hearing date originally set for July was adjourned previously in consideration of his health. However, there is a need to deal with the issues in a timely manner to be fair to all parties involved.

The Engineer also clarified that the hearing would deal with the full Report and that although Mr. Anglin has withdrawn his appeal, there is still an issue to be addressed due to the fact that the drain requested in the third petition will carry the drainage from the watershed to the west of Mindemoya southward. The Engineer indicated that he had no intention to increase the watershed area for the Mindemoya Drain.

The Engineer also explained that the lands to the west are contained in the assessment schedule as a one time assessment solely because of the potential that water could overflow into the Mindemoya Drain. He further explained that this land is not assessed in the Report for future maintenance, nor is it his intention to bring this area into the Mindemoya Drain.

2. Lockhart Appeal

Ms. Lockhart testified that she purchased her property in 2004 with her late husband and that their original plan was to build an environmentally sensitive home overlooking Hare’s Creek on the north side of the property. She stated that her husband died before they could turn this vision into a reality.

Ms. Lockhart testified that her property is a 10.7 acre estate lot with 138 feet of frontage on Douglas Drive, and that the level, rolling plan of the property would easily adapt it to a Plan of Subdivision. She further testified that the parcel has now become her investment property.

Ms. Lockhart testified that, in her opinion, the Engineer’s Report has compromised the value of her property because the Engineer did not properly understand that her property was one parcel instead of two. She further testified that she had great difficulty in convincing the Engineer that her property was indeed one legal parcel. She testified that in addition to producing a copy of the deed for her property, that at her own expense, she also secured a legal opinion to support that it was one legal parcel.

Ms. Lockhart also testified that she believes that her property was singled out in the Report during the valuation process. She further testified that she believes that the allowances in the Report were originally calculated based on the fact that the Engineers thought her parcel of land was 0.47 acres and not part of a larger 10.7 acre parcel, therefore her allowance is not adequate. She provided as evidence a real estate letter of opinion prepared by Scott McDougall, a sales representative with J. James Bousquet Realty Inc. Brokerage, estimating the value of her property as a single lot.

Ms. Lockhart testified that the Report proposes a 6 meter maintenance easement on the east side of the existing drain. She testified that this will dissect her property and prevent her from having a 66 feet frontage on Douglas Drive for a roadway entrance for any future development. She stated that the west side of the channel should be used for the maintenance easement which would leave her with an unobstructed street access and her property more intact.

She testified that the Report proposed cutting a channel through her property and that the Drainage Act provides in Sections 18 and 33 that she is entitled to a bridge, crossing or culvert in lieu of the value of the land access lost. Ms. Lockhart testified that she is frustrated by the lack of information available to explain the type of crossing or load capacity for which she is being compensated. She further testified that she requires a crossing that will support a cement mixer, excavator or emergency vehicles and that the Report’s provision is far from adequate. Ms. Lockhart testified that if Section 33 was fairly applied then an adequate crossing would be provided that is of higher quality than what has been offered. It is her understanding that half of the cost will be charged to her unless the value of the land that is proposed to be cut off (roughly 9 acres) is greater.

Ms. Lockhart expressed her frustration with the process and the inadequate allowance that is proposed considering the significant changes that are being proposed for her property.

She also stated that she has not been an obstructionist to the proposed project, and that although she may not agree with the Engineer’s Report entirely, she acknowledges that the Report was undertaken to deal efficiently with the spring runoff in the area.

In reply evidence, the Engineer testified that if the by-law is passed, the deed of land will not change and that Ms. Lockhart will still have 138 feet of frontage on Douglas Drive. In addition, the Report does not take away any of the legal frontage of her property. The Engineer also explained that the road allowance requirement of 66 feet includes the sidewalk, utilities easements, etc. Further, the Engineer testified that the impact is minimal on the future property value because houses cannot be built on the west side due to the current water course.

With respect to the right of way allowance provided to Ms. Lockhart for the drain under Section 29, the Engineer testified that he believes the Report is adequate. The Engineer testified that the value per hectare for the swale was downgraded. The Engineer further testified that the Report has chosen a reasonably straight path on the Lockhart property, with a channel width of 2.5 to 3 meters.

The Engineer testified that, in his opinion, the Allowance for Loss of Access was properly addressed in the Report. He testified that a timber structure is good for the rock cut, however, he also testified that in the alternative the allowance of $4,750, which was calculated considering the costs of a culvert, is still appropriate. He also provided an estimated cost of $8,400 for the culvert that is to be placed in the road allowance for Douglas Drive. He clarified in his testimony that he is prepared to allow for either a wooden bridge or a culvert for the Lockhart property in the Report and that the estimated cost of $8,000 to $9,000 would not result in any additional assessment to Ms. Lockhart.

He further testified that Ms. Lockhart needs to decide if she wants a culvert or wooden bridge; or if she wants the allowance; and that she should put this request in writing. He acknowledged that the location of the actual crossing can be worked out; however, he explained that he will need to know Ms. Lockhart’s decision before the date construction begins. The location of the culvert will determine whether a roadway needs to be built up to it, but he confirmed that the project is prepared to absorb this cost.

In response to questions, the Engineer agreed that if Ms. Lockhart wants the 6 meter maintenance strip reversed to the other side, from the east to the west, that he is not opposed to this. He explained that the original plan leaves the drain open and therefore maintenance can take place on either side.

The Engineer accepted the fact that the allowances may be confusing in places, but he maintained that overall they are adequate. He pointed to Ms. Lockhart’s own appraisal evidence to justify the market value used in the Report.

Ms. Lockhart explained during her summation that there are several issues that she would like resolved. First, that the 6 meter maintenance easement should be placed on the west side of the channel. In addition the rock from the work on the back of the property should be placed to define the channel and improve its appearance. She also mentioned that the construction of the drain should not interfere with the current operation of the sinkhole.

Ms. Lockhart reiterated her concerns with respect to the development of allowances and the process by which the Engineer arrived at her property value. She maintains it is not fair to take one property out of the averaging of the property values for the block and that the allowance should be reworked using the same value that the other landowners received.

Ms. Lockhart concluded by informing the Tribunal that she only learned of the possibility of a culvert at the hearing. She stated that she had been told there was a reason why a culvert could not be installed although she consistently requested an adequate crossing for emergency vehicles and construction vehicles. Therefore, she will need some time to determine where the culvert should be located.

Lockhart Findings

The Tribunal finds that the 6 meter maintenance easement can be located on the west side of the drain without any difficulty and will order that the work shall be modified to reflect the reversal of this easement.

The Tribunal finds that the evidence from both parties indicated that the Engineer originally treated Ms. Lockhart’s property as two separate parcels which may have affected the allowance for loss of access that was provided. The Tribunal will direct the Engineer to amend the Report to increase the loss of access allowance by $1,000.

Although Ms. Lockhart stated in her testimony that she would like a crossing or bridge that would accommodate emergency vehicles and construction trucks, she was not consistent regarding the type of crossing she prefers, where she would like it located or if she would accept the loss of access allowance instead of a crossing.

The Tribunal finds that the Lockhart property shall have the option of accepting the amended loss of access allowance OR having a culvert with the proper approaches constructed on the property as part of the drainage project at no additional cost to Ms. Lockhart. The Engineer shall provide in the Addendum Report the specifications for a culvert with approaches that are capable of transporting construction vehicles. The Tribunal will order that Ms. Lockhart will have 30 days to confirm, in writing, her choice between the allowance option and the culvert option.

3. Mielonen Appeal

Ms. Maja Mielonen testified that the proposed drainage works will seriously compromise the use of her property and will cause significant financial impact to her business of growing organic crops. She explained that her property has been organically gardened for 20 years and that the property currently has many trees that provide the necessary shade for what she grows.

She testified that she understands the need for and is not opposed to the drainage works but believes that the allowances provided to her under Sections 29 and 30 are not adequate. She explained that the allowances do not recognize the inability to expand her home in the future.

Ms. Mielonen also testified that the cedar hedge on her property is 30 to 40 feet high and that it is important that it not be disturbed by the drainage works because the cedars assist in soaking up water and provide a great buffer zone for dust and lights. She testified that Mr. Chris Allen, the first engineer assigned to the project, said that he would create a rock line so that the cedar hedge would not be disturbed. However, this is not in the Report and she is now asking the Tribunal for some kind of allowance or assurance that the cedars will be replaced if they are disturbed.

Ms. Mielonen testified that she had difficulty with the construction and design of the drain in three areas. First, she testified that the sediment trap system planned for the Mindemoya Drain is not adequate in the Report and that she expected the Report to contain sediment trap systems that would be able to filter petroleum and other contaminants. She further testified that Mr. Chris Allen had informed her that such sediment trap systems were used in the southern part of the province and that he would incorporate this into the Report. She explained the necessity of the sediment trap by identifying two oil spills affecting her property since 2002.

Ms. Mielonen testified that she disagreed with the proposed use of calcium chloride for dust control during road construction as it is her belief that it is highly corrosive and that the Report should have suggested an alternative method of dust control.

Ms. Mielonen identified that the third issue was the right of way for future maintenance work. She is requesting that the future right of way for the Municipality’s maintenance of the drain on her land be restricted to access from Douglas Drive. She testified that she would like this resolved in writing as she cannot be constantly interrupted from growing crops on this part of her property.

Ms. Mielonen also testified that the proposed allowance is inadequate to build a bridge that will provide access over the proposed drain. She explained that currently she can drive her truck through the natural watercourse to the remainder of her property and that she is able to move items such as manure back and forth for the production of her crops. She also requested that the Report be revised to indicate that she can build a bridge over the ditch without any permits or problems.

Ms. Mielonen also testified that a large number of the crops she grows require shade and that she is asking for compensation for the very large Manitoba Maple tree that will be removed during the drain construction.

In response to questions from the panel, Ms. Mielonen testified that she needs more than pedestrian or foot access across a bridge but does not require the ability to drive a truck across. She also stated that she cannot afford to build a large bridge and that she does not want to be hindered by the maintenance required for the drain.

The Engineer testified that the right of way allowance for Ms. Mielonen was $2,000.00. He stated that he cannot compensate for the inability for future expansion of the house. In addition, he stated that he believed that Ms. Mielonen was in agreement with moving the drain closer to the house to avoid any removal of the cedar hedge. In his opinion, the only solution to address the issue of future expansion of the house would be to move the drain to the other side along the cedar hedge.

In addition, the Engineer explained that the Court of Revision reduced the benefit assessment to the Mielonen property by $2,000.00, which effectively increased her allowance to $2,721.00.

The Engineer also testified that a sediment trap will not effectively deal with oil and that it may catch larger items or materials, but not oil. However, the Engineer did further explain that the technology that is available to do what Ms. Mielonen is requesting is not normally used in storm drainage projects. The Engineer explained that the Report was designed to address Ms. Mielonen’s concerns and that all of the catch basins will have 39 inch sumps in them to catch debris. He also noted that this will require a plan to clean out the sumps over time. The Engineer also testified that a snout could be placed on the catch basin to stop debris from entering the drain and that it may collect a bit of the skim of the oil that may be floating on top. He admitted that in southern Ontario oil and grit separators have been used, but cautioned that the minimum cost for the smallest of such structures is approximately $10,000. Since Ms. Mielonen’s request stems from her concern about multi-vehicle parking lots and there are currently no catch basins in the design of the drain in multi-vehicle parking lots, the Engineer suggested that Ms. Mielonen could bring this issue directly to the Municipality for future development standards.

The Engineer testified that the Dust Control Standard is developed by the Ontario Ministry of Transportation (MTO), and that the application of calcium chloride is in accordance with this standard. He testified that he could modify the Report to instruct that water be used first as a dust control suppressant and that he did not believe an order is necessary for this to occur. He explained that he believes that is what the Contractor will do in any event to avoid the cost of using calcium chloride. He does not support deleting the ability to use calcium chloride from the Report, but he would be willing to modify the Report.

He also testified that he does not have any control over the standards for highway construction as they are set by the MTO.

The Engineer testified that if the closed pipe section on the Mielonen property requires repairs or maintenance in the future, then they would access the drain from King Street. He agreed that Douglas Drive could be the access if the open channel section on the Mielonen property requires future work.

The Engineer also explained Section 64 of the Act and that if the project is completed and Ms. Mielonen is not satisfied then she can bring her issue before the Tribunal. However, the Engineer acknowledged that the Report requires a minor change to modify the construction note at drawing 16; and the words accompanying it should be “that all of the excavated material is to be salvaged on Mielonen’s property, the top soil and sub soil to be kept separately and then placed back into the backfill to match the existing conditions.”

The Engineer testified that with respect to the cedar hedge, he is not a tree expert. He has built many drains and he would not be opposed to warranty for the trees for a limited time period. The Engineer also testified that he did not believe that the drain could deviate around the Manitoba Maple tree.

With respect to the bridge, the Engineer testified that as long as Ms. Mielonen does not build anything in the centre of the channel, the bridge should not pose a problem for future maintenance. He suggested that Ms. Mielonen could build a bridge with a small hump in it to avoid any maintenance issues. He also clarified that he cannot tell the Municipality in his report that a building permit is not required. Further, he explained that Ms. Mielonen could continue to garden over the drain as long as she understands that if maintenance is required then they might disturb her garden.

During her summation, Ms. Mielonen requested that the Tribunal recommend oil grade separators to be added at Hwy 542 to the north and south connectors as part of the Report. In addition, Ms. Mielonen stated that she would like the Tribunal to recommend a filter system so that no contaminants will flow into Hare’s creek.

Further Ms. Mielonen acknowledged that although she remains concerned about the inability for future expansion of her home, she accepts the Engineer’s Report with the covered drain near her home as the lesser of two evils. However, Ms. Mielonen again indicated that she would like the by-law to provide that the maintenance access be restricted to Douglas Drive.

Ms. Mielonen expressed concern that she is unable to build the proper crossing to access the other side of her property with the current allowance and would like a guarantee that the maintenance of the drain will not prevent this crossing.

In addition, Ms. Mielonen requested that the Tribunal consider an allowance for the cedar tree hedge and for the replacement of the huge canopy provided by the Manitoba Maple tree.

In summation, the Engineer advised that he is not opposed to dealing with the oil and grit separators on the Highway drains, but that this is an issue that would involve the MTO and they are not a party to this hearing. He did admit that the MTO had directed water onto the Mielonen property from the highway.

He stated that he does not have any issue with a maintenance clause that restricts access for the open channel from Douglas Drive, nor does he see the bridge as an issue. He again acknowledged that the sinkhole could be identified as part of the drainage works.

The Engineer estimated that an allowance of $400 to $500 dollars for a tree 10 to 12 feet in height would be appropriate for the Manitoba Maple tree.

He also does not object to the cedar tree hedge warranty being part of the order.

Mielonen Findings

The Tribunal accepts the evidence of Ms. Mielonen that the proposed drainage works may compromise the use of her property and her business of growing organic crops. The Tribunal will order that the Report be amended to provide that all of the material excavated on the closed pipe portion of the Mielonen property is to be salvaged and that the top soil and sub soil shall be kept separate and placed back into the backfill to match the existing conditions.

The Tribunal accepts that any access for maintenance of the open channel on the Mielonen property should be from Douglas Drive so as not to interfere with her organic gardening business. The Tribunal will order that the maintenance access for the open channel portion shall be from Douglas Drive.

The Tribunal finds that Ms. Mielonen has provided the evidence necessary for an additional allowance for the removal of the Manitoba Maple tree by the construction of the drainage works and will order an additional allowance of $500.

The Tribunal accepts that the allowance for the bridge is not sufficient to restore her access to what it previously was. The Tribunal will order that the allowance for loss of access shall be increased by $200.

The Tribunal accepts evidence of Ms. Mielonen and the Engineer with respect to possible construction damage to the cedar hedge. The Tribunal will order the replacement of any of the cedar hedge trees that die, due to drain construction, within two years from the date of the certificate of completion for the drainage works on the Mielonen property.

The Tribunal has reviewed the Mielonen request for exemptions of approvals and permits for the construction of a bridge over the open channel drain on her property. The Tribunal finds that this is an issue between the property owner and the Municipality. The Tribunal will not make an order on this issue.

The Tribunal has reviewed the Mielonen request to use alternative dust suppressant instead of calcium chloride. The Tribunal finds that this issue deals with road construction only and that the property owner should deal directly with the Municipality. The Tribunal will not make an order on this issue.

The Tribunal has reviewed Ms. Mielonen’s request with respect to oil and grit separators. The Tribunal accepts the Engineer’s evidence that it is not a common practice on drainage projects in rural and residential areas to install these devices due to the cost and the limited effectiveness of the separators. Therefore, the Tribunal will not make an order on this issue.

Wayne Legge’s Statement

Mr. Legge, a landowner, briefly stated to the Tribunal that he was very involved in the community and that he attended the hearing on behalf of a large number of people in Mindemoya that also support the drain. He stated that storm water management is very important for future development and that he believes that the Mindemoya Drain is a very good project to support as it will benefit a large part of the community.

The Watershed Issue

The Engineer testified that when the Report was prepared, the lands to the west of the Mindemoya Drain were assessed a small amount on the basis that water from those lands could possibly overflow into the Mindemoya Drain.

Since a petition dated July 17, 2009, signed by Perry Chatwell, the Road Superintendent, and by Jeff and Lisa Turek, requesting improved drainage for an area immediately west of this project has been filed with the Municipality, the Engineer has now reviewed the Report and has determined that this watershed cannot overflow into the Mindemoya Drain. The Engineer recommended that the lands to the west should not be assessed in the Report. He further explained that water on a section of Highway 542, which had historically flowed south, has been redirected eastward to the Mindemoya Drain by highway reconstruction.

The Engineer recommended that the assessments for lands identified as “Watershed Area 1 and Watershed Area 2” on the Key Plan of Drawing No. 3 of the Report, except for Highway 542, should now be deleted from the Report.

Watershed Findings

Drawing 3 of 23 in the Report shows the outline of the watershed areas of the Mindemoya Drain. The key plan on this drawing shows two sub watershed areas identified as “Watershed Area 1” and “Watershed Area 2”.

Watershed Area 1 consists of the land defined by the watershed line in Lot 19, Concession 4 flowing south to Highway 542/541 and most of the land defined by the watershed line in Lot 18 Concession 5 south of Highway 542/541. Watershed Area 2 consists of most of the larger parcels of land defined by the watershed line in Lot 20, Concessions 5 and 6, and in Lot 20, Concession 6, as well as the rear of the lots fronting on Bay and Anglin Streets and parts of the lots on Anglin Street west of Bay Street.

Water from these two sub-watersheds outlet into sinkholes located adjacent to the intersection of Nixon and Anglin Streets. Under flooding scenarios, these sinkholes are unable to handle the flows and water overflows over the Nixon/Anglin intersection into the town.

Water from Watershed Area 2 is planned to be diverted into a new drainage project to be known as the “Mindemoya Drain South” (the Turek petition) which will carry the water south away from the town. When constructed, the lands in Watersheds 1 and 2 will no longer use the Main Drain as outlined in the Report.

The major part of the water from Watershed 1 is drained by the Highway 542/541 storm sewers which outlet into the Main Drain. During larger storm events the highway storm sewer becomes overloaded and water overflows the south highway ditch into Watershed Area 2.

The properties in both of these sub-watersheds are both presently assessed to the Mindemoya Drain. Watershed Area 1 lands have been assessed outlet at the rate of 5% of that assigned to the town properties and Watershed Area 2 lands have been assessed outlet at the rate of 10% of that assigned to the town properties.

The Report sets out that both Watersheds 1 and 2 will be removed from the Report when the “Mindemoya Drain South” is implemented. The Engineer stated that a revision to “Schedule A – Schedule of Assessments” in the Report is required to remove the lands in Watersheds 1 and 2 and requested the Tribunal to order a process to implement the assessment changes.

The Tribunal will order that the Engineer prepare a revised assessment schedule to remove the assessments on these lands from the Report.

The Sinkhole Issue

Considerable discussion took place regarding the sinkhole on the Lockhart property providing the outlet for the drainage water for the complete project under normal flow conditions. In Ms. Lockhart’s summation she stated that the construction of the drain should not interfere with the current operation of the sinkhole.

The Engineer supported sinkholes becoming part of the drain which would ensure that the sinkholes cannot be modified without properly proceeding under the Drainage Act. He explained that the design of the drain includes that the water will first enter the sinkhole and therefore the sinkholes are an integral part of the drain’s design.

The Tribunal will order that the sinkhole on the Lockhart property become part of the drain and that it be protected from obstruction and maintained as a part of the drainage project. The Engineer shall identify any additional sinkholes in the watershed that are integral to the drainage of the watershed and provide for them to be protected from obstruction and to be maintained.

Overall Findings

The Tribunal finds that the changes required to the design of the drain only affect the Mielonen and Lockhart properties. And in addition, the changes to the assessment schedule will not add any new property owners; only remove properties that are currently assessed. Therefore, the Tribunal finds that the preparation of an Addendum Report is required to incorporate the Order of the Tribunal and to provide for the recalculated assessments. As this hearing resolved the Section 48 appeals and all assessed owners were made a party to this hearing, any further appeals shall be limited to appeals of the recalculated assessments in the Addendum Report.

ORDER OF THE TRIBUNAL

For the reasons cited above, the Tribunal Orders as follows:

1. The Engineer shall prepare an “Addendum Report” to incorporate Items 2 to 7 below and shall list the sections or items that are deleted from the original Report. The Addendum Report shall be processed in a similar manner as the original Report including the holding of a meeting to consider and adopt the Addendum Report, to pass the by-law, to start the timeframe for sending notices regarding the Court of Revision, and to hold a Court of Revision.
2. The appeal of Lois Lockhart, is accepted in part and the Tribunal orders that:

a. The 6 meter maintenance easement on the Lockhart property shall be located on the west side of the drain.

b. The loss of access allowance for the Lockhart property shall be increased by $1,000.

c. The Lockhart property shall have the option of receiving the amended loss of access allowance OR having a culvert constructed with approaches at no additional cost. Ms. Lockhart shall inform the Municipality, in writing, of her decision to either:

i. accept the amended loss of access allowance; or

ii. indicate the location where she would like the culvert placed.

d. If Ms. Lockhart does not inform the Municipality, in writing, of her choice within 30 days of the date of the meeting to consider the Addendum Report then the allowance option is confirmed.

3. The appeal of Maja Mielonen is accepted in part and the Tribunal orders that:

a. Access for maintenance of the open channel located on the Mielonen property shall be from Douglas Drive only.

b. The allowance for the Mielonen property shall be increased by $500 to compensate for the removal of the Manitoba Maple tree.

c. The allowance for loss of access shall be increased by $200.

d. The Engineer shall provide in the Addendum Report for the replacement of any of the cedar hedge trees that die, due to drain construction, within two years of the date of the certificate of completion of the drainage work on the Mielonen property.

e. The Engineer shall provide in the Addendum Report that all of the material excavated on the closed pipe portion of the Mielonen property is to be salvaged and that the top soil and sub soil shall be kept separate and placed back into the backfill to match the existing conditions.

4. The Engineer shall identify the location of each sinkhole located within the Addendum Report and designate these sinkholes to be unobstructed, preserved and maintained as part of this drainage project.
5. The Engineer shall prepare an amended Schedule of Assessments to remove the lands in Watersheds 1 and 2, with the exception of Highway 542, from the Report.
6. The Schedule of Assessments shall be amended to include changes made by the Court of Revision on February 6, 2010.
7. The Addendum Report shall include modification of the cost estimate and the Schedule of Assessments to reflect the removal of the Missionary Branch from the project.
8. The Addendum Report shall be circulated to all parties listed in the Addendum Report.
9. Owners listed in the original Report but not listed in the Addendum Report shall be notified that they are no longer part of the drainage project.
10. There shall be no further appeals under Section 48 of the Act on this project because all affected landowners were made a party to the original Section 48 appeal, properly notified of the date and time of the hearing and chose not to participate in the Tribunal hearing.
11. Appeals from the Court of Revision for the Addendum Report, if any, under Section 54 of the Act may be made to the Tribunal.
12. The Tribunal panel shall remain seized of this matter to hear any appeals from decisions of the Court of Revision.
13. The Municipality shall amend the provisional by-law for the Mindemoya Drain, to include the Addendum Report.
14. There will be no order of costs and all parties are responsible for their own costs.

Dated at Amherstburg, Ontario this 28th day of October, 2010