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:

Glencairn Drainage Works Township of Adjala-Tosorontio

Glencairn Drainage (RE) 2011 ONAFRAAT 25

STATUTE:

Drainage Act

HEARING:

June 28, 2011

DATE OF DECISION:

July 13, 2011

2011-25

NEUTRAL CITATION:

2011 ONAFRAAT 25

GLENCAIRN DRAINAGE WORKS

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 Brent Rutledge of Glencairn, Ontario under Section 48(1) and 54(1) of the Drainage Act from the engineer’s report and from a decision of the Court of Revision; Elaine Melling; Mike & Anita Attwell; and Merissa & Phil Armstrong all of Glencairn, Ontario under Section 54(1) of the Drainage Act from a decision of the Court of Revision on the Glencairn Drainage Works in the Township of Adjala-Tosorontio.

Before:

Paula Lombardi, Vice-Chair; Jack Young, Vice-Chair; Cor Kapteyn, member

Appearances:

Brent Rutledge, appellant

Elaine Melling, appellant

Anita and Mike Attwell, appellants

Merissa Armstrong, appellant

Thomas Pridham, P. Eng., Engineer who prepared the Report

Jim Moss, Public Works Superintendent for the Township of Adjala-Tosorntio

DECISION OF THE TRIBUNAL

This hearing was held in the Council Chambers, Township of Adjala-Tosorontio,

(“Municipality”) in Alliston, Ontario on June 28, 2011. Brent Rutledge appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 48(1) and 54(1) of the Drainage Act (“Act”) from the decision of the Court of Revision on April 28, 2011 and the findings of the Engineer’s Report entitled “Glencairn Drainage Works” dated February 28, 2011 (“Engineers Report”). Elaine Melling, Mike and Anita Attwell, Merissa and Phil Armstrong appealed to the Tribunal under Section 54(1) of the Act from the decision of the Court of Revision dated April 28, 2011.

The Engineer’s Report was prepared by R.J. Burnside and Associates Limited. Mr. Thomas Pridham, a professional engineer with that firm, was designated under section 8(2) of the Act for overall responsibility for the Engineer’s Report (“Engineer”).

Ms. Barbara Kane, Clerk 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 Engineer’s Report parties to the hearing.

The Clerk of the Municipality filed an Affidavit of Service with the Tribunal as proof that all parties had been served with the notice of hearing and notice of rescheduling of the start time of the hearing.

Background

The drainage report was initiated by a Petition under section 4 of the Act submitted by the Municipality’s Director of Public Works as a result of a major flooding event that occurred in the Hamlet of Glencairn (“Glencairn”) on April 1, 2008.

On May 5, 2008, a delegation of residents from Glencairn appeared before Council and requested that something be done to rectify the flooding problem. On May 6, 2008, the Director of Public Works for the Municipality contacted R. J. Burnside & Associates Limited to conduct an initial assessment of the flooding problems in Glencairn and provide recommendations.

The Engineer’s investigation discovered two significant watershed areas to the south of the Glencairn: the westerly watershed being approximately 52.9 hectares in area; and the easterly watershed being approximately 123 hectares in area. These two watershed areas are used primarily for agricultural purposes.

On April 1, 2008, water flows from the westerly and easterly watersheds converged in Glencairn resulting in considerable flooding throughout Glencairn.

On October 27, 2008, a Public Meeting was held to review and discuss the recommendations of the Engineer. The Engineer recommended that a cut-off drain be constructed around Glencairn under the provisions of the Act. The Engineer further recommended that internal drainage improvements be undertaken within Glencairn when the cut-off drain is completed.

On November 12, 2008, the Engineer met with staff from the Nottawasaga Valley Conservation Authority (“NVCA”) to discuss their proposed recommendations to resolve Glencairn’s flooding problems. The Director of Public Works initiated a “Petition for Drainage Works by Engineer or Road Superintendent” on November 24, 2008 pursuant to section 4(1)(c) of the Act.

Council for the Municipality accepted the Petition and appointed the Engineer to prepare the Report on December 1, 2008. The Engineer conducted the site meeting on April 25, 2009 and a public open house was held on December 8, 2010. On February 28, 2011, the Engineer’s Report was completed and submitted to the Municipality. A public open house was held on March 26, 2011 and a meeting for consideration of the Engineer’s Report was held on March 31, 2011. A Court of Revision date was then scheduled for April 28, 2011.

The following four property owners appealed the decision of the Court Revision:

Property Owners

Roll Number

Assessment

Mr. Rutledge

5-064-20

$2,550

Mr. & Ms. Attwell

5-055-11

$1,600

Ms. Melling

5-056-00

$1,600

Mr. & Ms. Armstrong

5-067-02

$250

The cost of the Project is estimated at $395,000: 80% of the cost of the Project is assessed to the Municipality while the remaining 20% is assessed to the properties situated within the watershed. The residential properties are assessed a “Benefit by Cut-Off” assessment which takes into consideration the benefit received by these properties by having the storm water redirected away from the residential area. The Benefit by Cut-Off Assessment assigned to the residential properties ranges from $500, $1,500 or $2,500 depending on the location of the residential lot relative to the flooded area.

Issues:

1. Based on the information set out in the Engineer’s Report, should the Project be abandoned, modified, and/or altered?

2. Should the Appellant's assessments be reduced?

Evidence

Tom Pridham, P.Eng., Engineer responsible for preparing the Engineer’s Report

Mr. Pridham gave an overview of the project. He presented a series of slides showing the flood that occurred on April 1, 2008, along with a drawing showing the extent of flooding on each of the residential properties and the municipal roads. To relieve the flooding in the residential area, the Municipality dug a relief ditch across Webster Road in an attempt to reduce the flood damage.

The report recommends the construction of an external cut-off drain commencing at Concession 2, running easterly along the south limit of Glencairn and then flowing north along the east limit of Glencairn, across Webster Road into the gravel pit to outlet into the Mad River. The project was designed for a 25 year storm. It was also recommended that the internal drainage improvements in Glencairn be undertaken by the Municipality once this project is completed.

Brent Rutledge – Section 48(1) Appeal (Roll # 5-064-20)

Mr. Rutledge stated that the Engineer’s Report was well written; however, he felt the Report was flawed because, in his opinion, there is only one watershed in Glencairn and not two.

Mr. Rutledge raised considerable concern with the Municipality issuing a building permit for a property on Webster Road, and claimed the homeowner failed to obtain the appropriate permit from the NVCA to alter a drain alongside the property. Mr. Rutledge then proceeded to review numerous e-mails that he sent to the Municipality in 2007, prior to the April 1, 2008 flooding of Glencairn, expressing concerns about the drainage work done by his neighbour at 8759 Webster Road (“Beaudoin Property”). Mr. Rutledge was concerned that the drainage work completed by his neighbour caused a lot of flooding on his property and expressed his frustration with what, in his opinion, was the Municipality’s lack of response to his concerns.

Mr. Rutledge claimed that the Engineer’s Report is not an independent report and referred to an e-mail dated June 30, 2009 from Gord Feniak, a Senior Vice President with R.J. Burnside & Associates Limited which stated in part, “…assessment of costs for drainage improvements will ultimately be made by the Township Council, and our firm works at the direction of Council…. As a property owner you will also find that the Drainage Act contains its own remedies in the event that you disagree with decisions that are made.” Mr. Rutledge relied on this statement to allege that the report was biased and should not be considered an independent report as required by the Act. The Tribunal concludes that Mr. Feniak was not responsible for preparing the Engineer’s Report and based on the evidence and testimony brought forward by the Engineer, the Tribunal finds that the Engineer’s Report is an independent report.

Mr. Rutledge produced a series of photographs depicting: drainage on his neighbour’s property; the culvert constructed by the Municipality to divert water from Mr. Rutledge’s property; the flow of water towards Mr. Rutledge’s property due to the removal of trees from a Township property; a rail crossing with a 30 inch opening; and a photograph indicating that the rail crossing had been removed. Mr. Rutledge alleged that the photographs were evidence that the proposed drainage works were unnecessary as the flooding was caused by numerous issues that were not taken into consideration by the Engineer.

Mr. Rutledge stated that in March 21, 2011, the residents of Glencairn signed and submitted a petition to the Township calling for a better and more cost effective approach to resolving the drainage issues. The petition called for the illegal drain at 8759 Webster Road (commonly referred to as the Beaudoin Property) to be filled in at the property owner’s expense, and asked that the Township provide adequate road ditching for the residents of Glencairn for 2011. Mr. Rutledge further stated that when he returned from a vacation, another petition was submitted asking that the Glencairn Drainage Project be stopped.

In response to the Engineer’s comments about the rail crossing, Mr. Rutledge agreed that it had been there for many years and stated the crossing had been removed by "the fellow who built my house" and that the blockage of the railway embankment was intended to divert the flow of water away from his property onto Webster Road.

The Engineer stated that the flooding on April 1, 2008, was caused by the water from the western part of the watershed which flowed through Glencairn. The Engineer advised that the changes to the channel and drainage on the Beaudoin property had little impact on the flooding that took place on April 1, 2008. The Engineer relied upon a detailed hydrology study and hydraulic modelling contained in the Engineer’s Report in support of his position and further, that the construction of the Project received a permit from the NVCA.

The Tribunal asked that Mr. Rutledge provide a summary outlining the relief he was seeking from the Tribunal.

In summary, Mr. Rutledge alleged that the Township created many of the problems that eventually led up to the flooding in Glencairn on April 1, 2008 and, as a result, should accept full responsibility by paying the total cost of the drainage works.

Merissa Armstrong- Section 54 Appeal (Roll # 5-067-02)

Ms. Armstrong stated that her house was built after the flood occurred in Glencairn and that at the time her house was built; she paid $2,000 for a lot drainage plan. Ms. Armstrong stated that the Municipality had failed to consider the option of road ditches and was of the opinion that road ditches would address the drainage issues and that property taxes were already too high. Concern was also expressed that the Project may result in their private wells running dry due to the diversion of water away from the residential area. Ms. Armstrong requested that her assessment be re-evaluated and consideration be given to wells running dry.

The Engineer advised the Tribunal that Ms. Armstrong’s property was assessed a minimum assessment rate of $250. It was the position of the Engineer that cutting off the external flow of water towards the Municipality will allow for internal improvements to the residential area, and that Ms. Armstrong will benefit from these future improvements.

Elaine Melling – Section 54 Appeal (Roll # 5-056-00)

Ms. Melling stated that she has lived in Glencairn for 21 years and had never seen a flood like the one that occurred on April 1, 2008. Ms. Melling agreed that something needs to be done to address the drainage issues but that the Municipality had failed to consider the option of road ditches. Ms. Melling advised the Tribunal that where her property is located, she does not have a water problem. She felt that an assessment of $1,600.00 is too high when she does not currently have a drainage problem. Ms. Melling also expressed concerns with the impact of the Project on her well.

The Engineer outlined his responsibility under the Act to distribute the cost of the drainage works. The Engineer advised that in distributing the approximate $400,000 cost of the drainage works, 20% of the cost was assessed to Glencairn where Ms. Melling’s property is located. Ms. Melling’s property was in the middle of the assessment rate and was the same rate as the Attwells.

Anita and Mike Attwell – Section 54 Appeal (Roll # 5-055-11)

Ms. Attwell stated that they also do not experience any drainage problems on their property and do not understand why they are being assessed $1,600. The Attwells alleged that there is no evidence from the Engineer showing water on their property, and further, that their property sits 6 to 8 inches above the field behind them.

The Attwells also reiterated the concerns of the other Appellants about the impact of the Project on their private wells. The Attwells also felt that road ditches should have been considered by the Municipality prior to engaging in this costly Project.

The Attwells agreed that a drainage problem existed in Glencairn, but that the Municipality should bear the full cost of fixing the problem. The Attwells were concerned that the Municipality was permitting the construction of houses in a location where they knew there could be a drainage problem. Concern was also expressed about the gravel pit and that the Township, in permitting the gravel pit, created the drainage problem in Glencairn because water will always drain towards a lower point. Consequently, the Attwells concluded that the Township should be responsible for the full cost of the Project. The Attwells requested that their assessment be lowered from $1,600 to $500 or even $250.

The Engineer indicated that the proposed Project will not impact the private wells used by the residents as their potable source of water.

Brent Rutledge – Section 54 Appeal (Roll # 5-064-20)

Mr. Rutledge had no additional comments to make with regard to his assessment appeal and requested that the Tribunal excuse him from the remainder of the hearing.

Jim Moss - Public Works Superintendent for Municipality

Mr. Moss stated that the Municipality supports the Project and agreed that it was the best way to resolve the issue of water draining into Glencairn. Mr. Moss reiterated that the Municipality is assessed for 80% of the cost of the drainage works and that when completed, the drainage works will be an asset to Glencairn.

Engineer’s response to Section 54 appeals

The Report drawings did not show the Attwell and Melling properties as being located within the flood zone, however, there was evidence indicating that these properties had flooded on April 1, 2008. Mr. Pridham stated that the hydraulic design for the project as shown in the Technical Memorandum provided for a maximum water level of 224.20 m at the back of the Attwell and Melling properties. A field survey showed the elevation at the back of these properties as between 224.20 m and 224.35 m which is only marginally above the flood level.

He also provided an estimate of the April 1, 2008 flood level at the back of these properties by referring to photographs taken on that date and determining the water level at a shed and fence corner that were flooded in the photo. A field survey showed the elevation of these points as 224.55 m and 225.53 m respectively. The Engineer’s estimated water level elevation on the Attwell and Melling properties, that are upstream of the shed shown in the photograph, is approximately 224.70 m and would confirm flooding of these properties during the April 1, 2008 flood.

Mr. Pridham referred to his notes from a telephone conversation on December 16, 2008 with Ms. Attwell about her basement flooding on April 1, 2008.

On the costs issue, Mr. Pridham said that 80% of the cost of the project is assessed to the Municipality and 20% to the residential and farm lands. The residential lots directly affected by the flooding are assessed the Benefit assessment of $2,500. Residential lots adjacent to the flooded lands were assessed in the mid-range at $1,500. Residential lots located above the flood line are assessed the minimum at $250.

The Rutledge property is located at the very lowest point in Glencairn on the south side of Webster Road and was severely impacted by the April 2008 flood and is, accordingly, at the high range and allocated a $2,500 Benefit assessment.

The Attwell and Melling properties are located adjacent to the flood area and assessed at the mid range of $1,500 Benefit.

The Armstrong property is located well above the flood area and assessed at the minimum assessment of $250.

Findings

The flooding problem in Glencairn has been ongoing for several decades. The evidence indicated that while some studies were being undertaken to resolve the problem, the April 1, 2008 flood precipitated the decision to move forward.

The agricultural water from the south is presently transported through Glencairn by the road ditches. Numerous Appellants proposed the enlargement of the road ditches, as an initial step prior to engaging in the costly drainage Project. The Engineer testified that there was no room in the road allowances to enlarge the road ditches.

The evidence clearly indicated that a solution was necessary and the Tribunal endorses the Engineer's Report that proposes to divert the agricultural water around the Glencairn residential area, and the use of the Drainage Act to construct and administer the project as well as provide for the distribution of the cost of the project on a user pay basis over all of the lands affected.

Much of the documentary evidence, as well as some of the verbal evidence relied on by the Appellants related to issues and events that occurred prior to the commencement of the project under the Act. This evidence does not pertain to the issues brought before the Tribunal and, as a result, little weight was given to this evidence. The Tribunal only has the statutory jurisdiction to deal with issues associated with the Engineer's Report.

The Tribunal considered Mr. Rutledge’s issues with respect to the Report. Mr. Rutledge raised a concern with the Report referring to two watersheds. However, Mr. Rutledge failed to bring any persuasive evidence forward to dispute the information set out in the Engineer’s Report. Mr. Rutledge raised a concern that the Report was not an independent report. Mr. Rutledge did not present any evidence indicating that the Engineer did not act independently in the preparation of the Report. The Tribunal was referred to two petitions signed by the residents and submitted to the Municipality recommending alternative approaches to resolving the drainage issues. The Tribunal is unable to take these petitions into consideration when making its decision as it lacks the statutory jurisdiction to take these petitions into account.

With regard to assessments under section 54 of the Act, all residents of Glencairn benefit from having the drain diverted around the residential area so that the roads and residential lots will not be subject to flooding in the future. The landowners are assessed only 20% of the cost of the Project while the Municipality is responsible for 80% of the costs. The 20% cost assessed to the landowners is reasonable based on the benefit they derive from the Project. The Tribunal accepts the Engineer's rationale in assessing the Armstrong property in the $250 assessment category, the Attwell and Melling properties in the $1,500 assessment category and the Rutledge property in the $2,500 assessment category.

ORDER OF THE TRIBUNAL

The Tribunal Orders that:

1. The appeals by Brent Rutledge under Sections 48(1) and 54(1) of the Drainage Act are denied.

2. The appeals by Elaine Melling, Mike & Anita Attwell, and Merissa & Phil Armstrong under Section 54(1) of the Drainage Act are denied.

3. The non-administrative costs of the Municipality in respect of 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 the own costs.

Dated at London, Ontario this 13^th day of July, 2011