Agriculture, Food and Rural Affairs

Appeal Tribunal

1Stone Road West

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales

1, chemin Stone Ouest

Guelph ON N1G 4Y2

Tel: 519 826-3433, Fax: 519 826-4232

Toll Free: 1 888 466-2372 Ext. 6-3433

Email: appeals.tribunal.omafra@ontario.ca

Guelph ON N1G 4Y2

Tél. : 519 826-3433, Téléc. : 519 826-4232

Sans frais : 1 888 466-2372 poste 6-3433

Courriel : appeals.tribunal.omafra@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Schooley Municipal Drain 2010

Town of Fort Erie

Schooley Municipal Drain (RE) 2011 ONAFRAAT 2

STATUTE:

Drainage Act

HEARING:

January 25, 2011

DATE OF DECISION:

January 31, 2011

2011-02

NEUTRAL CITATION:

2011 ONAFRAAT 2

SCHOOLEY DRAIN 2010

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 Karin Gagne, of Ridgeway under Section 54(1) of the Drainage Act from the decision of the Court of the Revision; Fred and Moira Daubert, of Ridgeway under Sections 48(1) and 54(1) of the Drainage Act from the engineer’s report and the decision of the Court of Revision; and Barbara and Andy Huard under Section 48(1) of the Drainage Act from the engineer’s report on the Schooley Municipal Drain 2010 in the Town of Fort Erie.

Before:

Kirk Walstedt, Chair; Enio Sullo, Member; Tim Mousseau, Member

Appearances:

Fred and Moira Daubert – appellants

Daniel Devereux – representative for Karin Gagne, appellant

Barbara and Andy Huard – appellants

John Kuntze – Engineer who prepared the Report

Brett Ruck – Drainage Superintendent for Municipality

DECISION OF THE TRIBUNAL

This hearing was held in the Council Chambers of the Town of Fort Erie in Fort Erie, Ontario on January 25, 2011. Fred and Moira Daubert, and Barbara and Andy Huard appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal under Section 48(1) of the Drainage Act (Act) from the Engineer’s Report prepared by K. Smart Associates Limited and signed by John Kuntze, P.Eng. on the Schooley Drain 2010, dated February 12, 2010 (the Report); and Karin Gagne, and Fred and Moira Daubert appealed to the Tribunal under Section 54(1) the Act from a decision of the Court of Revision dated August 11, 2010.

Margarete Taddeo, Records Management Assistant for the Town of Fort Erie, performed the duties of the Clerk of the Tribunal.

Background

The Schooley Drain is located along Point Abino Road from the Friendship Trail south and then easterly into Lot 31, Concession 1 (LE) in the former Bertie Township, now in the Town of Fort Erie. The watershed is comprised of approximately 98.1 Ha (242 Ac) of predominantly agricultural land with some wooded and residential areas. The Drain currently flows into the head of the Outlet Drain which continues downstream, northerly to an outlet into Black Creek at the QEW south of Townline Road. The Engineer’s Report proposes cleanout and improvements to the Drain including a new outlet into the Baer Drain for a total estimated cost of $100,800.

Issues

1. Is the work proposed by the Engineer’s Report compliant with the Drainage Act and in keeping with good practice?
2. Are the assessments in the report and confirmed by the Court of Revision compliant with the Drainage Act and are they fair and reasonable?

Evidence

Engineer – John Kuntze

Mr. Kuntze testified that he was retained by the Municipality to prepare a report under Section 78 of the Act for the repair and improvement of the Schooley Drain. He explained that Wiebe Engineering was originally appointed to prepare a drainage report in 2005 and that he was retained when that company ceased operations in 2007, before completing their work. At that point, only a draft report had been prepared by Wiebe Engineering and had not been considered by the municipality. Mr. Kuntze said that in preparing his Report, he supplemented the survey work and some of the analysis that had been previously completed by Wiebe Engineering with his own survey and examination of the site. He said that he surveyed an alternate route for the Schooley Drain westerly from Point Abino Road then northerly to a new outlet into the Baer Drain. He testified that this new route followed a westerly sloping, natural topography of the land. He stated that his primary area of concern with the existing Schooley Drain was along the east side of Point Abino Road where the channel is within the Point Abino Road right-of-way. He said that it was apparent to him that a portion of the drain should be moved to the west side of Point Abino Road, away from the road right-of-way, and that the drain should then follow a natural westerly flow into a new outlet into the Baer Drain in order to properly drain the Schooley Drain watershed. He determined that relocating the channel further to the east on the east side of the road allowance for Point Abino Road was not a practical solution since the land on the east side adjacent to the road allowance is comprised of landscaped residential properties with 7 entrance culverts that would be affected.

In further testimony, Mr. Kuntze stated that in their draft design, Wiebe Engineering had proposed to relocate the Schooley Drain channel to the east behind the existing residential lots, and continuing north to an eventual outlet into the Outlet Drain. However, after analysis of his own survey of the site, Mr. Kuntze concluded the alternate route westerly from Point Abino Road to the west limit of the J. and B. Day property then northerly to the Baer Drain, was a more appropriate solution. He noted that the land naturally slopes from east to west and that his proposed route took advantage of the natural fall of the land to the west thereby reducing the overall project cost. He said that in his experience, it is always best to construct the drainage channel along the natural gradient of the land. He explained that the alternate route would provide a higher level of protection for the upstream watershed when compared to the existing route since the channel will be able to overspill its banks onto the adjacent low lying lands during a major storm event. Along its current route, Mr. Kuntze said that the drain passes through higher ground and so the flow must be confined within the channel even during major storm events, causing more backup of water onto upstream lands. Mr. Kuntze stated that construction costs would be less since the alternate outlet route did not require as deep a channel, as well as the replacement of the existing driveway culverts.

Mr. Kuntze stated that the work proposed in his Report comprises the cleaning of the existing upstream drain channel east of Point Abino Road, constructing a new culvert across Point Abino Road to the west, and constructing a new drainage channel with a westerly flow to a new outlet in the Baer Drain. He said that his estimated cost of the work is $100,800 which he assessed to Point Abino Road and the affected landowners within the watershed.

Based on his discussions with the affected landowners, Mr. Kuntze requested the Tribunal to make amendments to his Report with respect to the working corridor and corresponding allowances for damages under Section 30 of the Act, namely on the upstream portion of the Drain between Station 0+900 and 1+159. He asked that the working corridor in that section be changed from the south side on the Daubert property to the north side on the Huard property. With respect to these particular allowances, he requested that the Tribunal decrease the allowance to the Daubert property, Roll No. 20018-276, by $300 and increase the allowance by $300 to the Huard property, Roll No. 20018-277. The Appellants did not object to the amendments requested by the Engineer.

Mr. Kuntze then proceeded to explain how he calculated the assessments. He testified that he broke down the drain into three intervals: Interval 1 being the Day property west of Point Abino Road, Interval 2 being the Point Abino Road crossing, and Interval 3 being the Huard and Daubert properties east of Abino Road. Interval 3 also includes the Gagne property. Mr. Kuntze said that he assessed each interval based on the estimated costs for the work in that interval. For Intervals 1 and 2, with estimated costs of $84,400.00, he stated that the upstream landowners are only assessed an outlet assessment of $1,900.00, which represents about 2.5% of the total assessment for Intervals 1 and 2. With respect to the assessments for Interval 3, he testified that the assessments for benefit and outlet were calculated based on the contributing land area and respective land use. For interval 3, he stated that the entire cost for this interval was assessed to the landowners in the interval since the road is downstream of this area and derives no benefit from the work done in this area.

Mr. Daniel Devereux on representing Karin Gagne - Appellant

Mr. Devereux complained that the Engineer did not assess enough of the costs to Point Abino Road. He suggested that the drainage improvements would not be required if the road did not exist. In response to Mr. Devereux, Mr. Kuntze testified that in his opinion, the work required to improve and repair the Drain would still be required if the road did not exist. He said that in carrying out his design he was driven by the need to improve the outlet of the Schooley Drain as opposed to existence of the road.

Mr. Fred Daubert - Appellant

Mr. Daubert questioned what will be done with the drainage issues that he said currently exist downstream in the Outlet Drain north of Highway No. 3. He argued that the work proposed under the current Engineer’s Report on the Schooley Drain is premature and that downstream drainage work on the Outlet Drain needs to be completed first. His said that there is insufficient outlet for the Schooley Drain because the current Outlet Drain is not functioning. He reasoned that since the repair and improvements to the Schooley Drain are premature, he and others in the watershed should not be assessed.

In response to Mr. Daubert’s testimony, Mr. Kuntze testified that he is satisfied that the proposed alternate outlet for the Schooley Drain into the Baer Drain and ultimately into the Outlet Drain is a sufficient outlet pursuant to the Drainage Act. He agreed that the Outlet Drain is in need of repair but he said that it can adequately handle the outflow from the Schooley Drain. In any case, Mr. Kuntze said that the Municipality had instructed him to prepare a drainage report for the Outlet Drain in order to address the issues in that drain, and that this report is currently in the process of being prepared.

Mr. Andy Huard - Appellant

Mr. Huard testified that he has lived in the Schooley Drain watershed for 35 years and that he has witnessed an ongoing drainage problem in the area over that period. He said that he has seen the Schooley Drain overtop its banks with water flowing westerly over Point Abino Road. He supported the work proposed in the Engineer’s Report but complained that he was being assessed too much and that more of the cost should be assessed to the Road Authority. He was also concerned about future assessments to his property as a result of future reports on the downstream drains.

Findings

The Tribunal is satisfied that the work proposed in the Engineer’s Report is necessary to resolve the drainage issues on the Schooley Drain. The Tribunal finds that the proposed work is both compliant with the Act and in keeping with good engineering practice. The Appellants did not provide any technical evidence or call any professional witnesses to suggest otherwise.

The Tribunal has reviewed the Engineer’s methodology in calculating the assessments, including the further explanation that he provided during the hearing, and finds that the assessments as calculated in the Engineer’s Report are both fair and equitable. Although the Appellants complained that their assessments were too high, there was no convincing evidence presented as to why the Tribunal should make any changes to any of the assessments.

Hearing no objection from the Appellants regarding proposed changes to the working area, the Tribunal will grant the Engineer’s request to change the working corridor from Station 0+900 to 1+159 from the south side to the north side of the drain with corresponding amendments to the Allowances under Section 30 of the Act.

ORDER OF THE TRIBUNAL

The Tribunal Orders as follows:

1. The appeal of Karin Gagne under Section 54(1) of the Act is denied.
2. The appeals of Fred and Moira Daubert under Section 48 and 54(1) of the Act are denied.
3. The Appeal of Barbara and Andy Huard under Section 48(1) of the Act is denied.
4. Pursuant to the Engineer’s request, the Report shall be amended as follows:
   1. The working corridor from Station 0+900 to 1+159 shall be changed from the south side of the Drain to the north side of the Drain.
   2. The Allowance to Barbara and Andy Huard, Roll No. 20018-277 shall be revised from $500 to $800 and the Allowance to Fred and Moira Daubert, Roll No. 20018-276, shall be revised from $500 to $200.