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 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:

Kalita-Pfeifer Drain Municipality of West Elgin

Kalita-Pfeifer Drain (RE) 2012 ONAFRAAT 6

STATUTE:

Drainage Act

HEARING:

April 11, 2012

DATE OF DECISION:

April 17, 2012

2012-06

NEUTRAL CITATION:

2012 ONAFRAAT 6

KALITA-PFEIFER DRAIN Section 54(1) Appeal Municipality of West Elgin

IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.

AND IN THE MATTER OF: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by the County of Elgin, St. Thomas, Ontario under Section 54(1) of the Drainage Act from the decision of the Court of Revision on the Kalita-Pfeifer Drain in the Municipality of West Elgin.

Before: Kirk Walstedt, Chair; Enio Sullo, Vice-Chair; Bill Schaefer, Member

Appearances: John Spriet, Spriet Associates London Limited - Engineer who prepared the Report Peter Dutchak, Deputy Director of Engineering Services, County of Elgin - Appellant Philip Pfeifer – assessed landowner

DECISION OF THE TRIBUNAL

This hearing was held in the Municipal Building, Municipality of West Elgin, (the Municipality) in Rodney, Ontario on April 11, 2012. The County of Elgin (the County) appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54(1) of the Drainage Act (the Act) from the decision of the Court of Revision, dated July 21, 2011 from the Engineer’s Report on the Kalita-Pfeifer Drain dated May 5, 2011 (the Report), prepared by Spriet Associates London Limited (the Engineer), and signed by John Spriet, P.Eng.

Norma Bryant, Clerk of the Municipality, performed the duties of the Clerk of the Tribunal.

Preliminary Matters

Prior to the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report parties to this hearing. The Clerk of the Municipality filed an Affidavit of Service with the Tribunal as proof that all parties had been served with notice of rescheduling of the hearing dated January 16, 2012.

Background

The County of Elgin undertook a $5 million reconstruction of a 17 km section of Talbot Line (County Road No. 3) in the Municipality of West Elgin. In conjunction with the road reconstruction project, the County filed several petitions for drainage, under Section 4 of the Drainage Act, in order to establish, improve or otherwise legalize the drainage outlets for the road and adjacent lands. The current Engineer’s Report was prepared in response to one of those petitions.

The Engineer’s Report provides for the drainage of approximately 43 hectares of lands and road in Lots 13 and 14, Concessions 12 and 13 in the Municipality of West Elgin. The work comprises the construction of approximately 650 m of closed drain tile both on and off the Talbot Road right-of-way for an estimated cost of $42,100 of which $15,592 was assessed to eight private land parcels and $26,508 was assessed to Talbot Line.

The Court of Revision for the Municipality ordered that the assessment for outlet to Roll No. 050-161 (P. Pfeifer) be reduced to $4,000 (a reduction of $2,203) and that the assessment for outlet to Talbot Line (County of Elgin) be increased by $2,203.

Issues

Should the assessments against the Appellant be amended?

Evidence

Engineer – John Spriet, P. Eng.

Mr. Spriet testified that he prepared the Report pursuant to a Section 4 petition for drainage filed by the County of Elgin, being the road authority for Talbot Line. He explained that the petition was one of several filed by the County seeking legal status for the drainage of the road and adjacent private lands as part of the road reconstruction of Talbot Line. He described the work proposed by his Report as being the construction of a closed tile drain both on and off the Talbot Line road right-of-way. He said that he designed the tile using a 38 mm drainage coefficient to handle the flows from the entire 43 hectare watershed, which includes both the road and private lands. He further testified that parts of the drain associated with the crossing of Talbot Line were previously constructed by the County so he did not include this work in his Report.

Mr. Spriet testified that he used the Todgham method to calculate the assessments. He went on to explain his methodology in detail by referring to a series of 6 calculation sheets that he put into evidence. In general, he said that he divided the drain into 3 sections, assigned a cost to each section and then apportioned each section cost to special benefit, benefit and outlet assessments. He explained that in calculating the benefit assessment to the County, he considered what it would cost the County for a hypothetical drain located along the road to drain the road only. He said that he gave the County a special assessment because they were the petitioner for the drainage and also to make the project more palatable to the other landowners.

Mr. Spriet testified that among other things, he considered land use in calculating the assessments for outlet. He said that he used a base factor or 1.0 for agricultural land, 4.0 for the road right-of-way and 0.5 for wooded lands. He confirmed that in calculating the assessment outlet to Mr. Pfeifer’s lands, he took into consideration that part of the lands were wooded.

Appellant – Peter Dutchak, County of Elgin

Mr. Dutchak testified that the County’s $5 million dollar project for a 17 km long reconstruction of Talbot Line began with public meetings in 2007 with construction following in 2008 and 2009. He said that as part of the project, the County undertook a complete review of the existing drainage systems with the objective of legalizing the outlets while maintaining the historical watersheds. Mr. Dutchak commented that the County could have designed the new drains to serve the road only but that would have been short sighted. He noted that although the road was high and dry and did not flood, the County was nevertheless interested in cleaning up the area and making sure the outlets were all legal. Accordingly, they filed several petitions for drainage under Section 4 of the Drainage Act, including the one associated with the current Report.

Mr. Dutchak testified that the County supports the Engineer’s assessments which formed part of the Report prior to the Court of Revision’s decision. He said that the County understands that roads typically end up paying the lion’s share of costs as special assessments, particularly in cases where they are the petitioner as is the case here. He stated that the County accepts and agrees with the Todgham method used by Mr. Spriet in calculating the assessments. He remarked that while the County does not like the heavy assessments imposed by the Engineer, they accept the assessments as such because they are technically concise and consistent with industry practice applied by other experienced drainage engineers.

Mr. Dutchak testified that County Council directed staff to file an appeal to the decision by the Municipality’s Court of Revision to avoid the establishment of a negative precedence. He said that the County objects to the unjust and arbitrary actions of the Court of Revision in this case which imposed extra assessments to the County. He said that the Court of Revision’s actions were unfounded, unjust and lacked any clear rationale.

In summary, Mr. Dutchak urged the Tribunal to reject the assessment reduction to Mr. Pfeifer. However, he said that should the Tribunal decide to confirm the assessment reduction granted by the Court of Revision, then the costs should be spread amongst all other affected parties, not just the County.

Assessed landowner – Philip Pfeifer

Mr. Pfeifer did not present any significant oral evidence at the hearing except to complain that he was not notified of the planning meetings for this drain. However he did put into evidence a letter dated November 14, 2011 which he had addressed to the Municipality of West Elgin. In his letter, Mr. Pfeifer complains that even with assessment reduction granted by the Court of Revision, the percentage of cost burdened on his lands seems to outweigh any benefit he would receive. He argued that his assessments make the cost per workable acre extremely expensive considering that part of his lands are wooded and part are wetland. He went on to argue that since the County of Elgin requested the new drain, they should pay the entire cost. He also complained that he was not consulted during the planning stages and commencement of the work. In summary, Mr. Pfeifer requested that the revised decision by the Court of Revision to reduce his assessment be upheld.

Drainage Superintendent –John Unger

In response to a question from the Engineer, Mr. Unger testified that all the landowners in the watershed, including Mr. Pfeifer, were mailed invitations to the meetings associated with this drain, including the site meeting.

Findings

The Tribunal finds the Engineer’s method of calculating the assessments to be technically sound, compliant with the Act and in keeping with accepted practice.

There was no evidence presented at the hearing to rationalize or justify the decision of the Court of Revision to reduce the benefit assessment to the Pfeifer property by $2,203 and impose the amount onto the County of Elgin. The Tribunal was not swayed by the complaints and arguments put forward by Mr. Pfeifer in this regard. If Mr. Pfeifer presented those same complaints and arguments to the Court of Revision, the Court also should not have been swayed. The Tribunal agrees with the Appellant’s arguments that the Court of Revision actions were unfounded and without clear rationale. The Tribunal is surprised by the decision made by the Court of Revision. Therefore, the Tribunal will order that the decision by the Court of Revision to grant a reduction in assessment to Mr. Pfeifer at the expense of the County be rescinded and that the assessments be reinstated to those contained in the Report.

ORDER OF THE TRIBUNAL

The Tribunal orders that:

1. The decision by the Court of Revision to reduce the assessment for benefit to Roll No. 050-161 (P. Pfeifer) by $2,203 and increase the benefit assessment to Talbot Line (County of Elgin) by the same amount is rescinded. The assessments shall be reinstated to those contained in the Report.

2. 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 shall be responsible for their own costs.

Dated at Maidstone, Ontario this 17th day of April, 2012.