Line 86 Municipal Drain 2013 (Re), 2013 ONAFRAAT 12

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:

Line 86 Municipal Drain 2013 Township of Woolwich

Line 86 Municipal Drain 2013 (RE) ONAFRAAT 12

HEARING:

September 4, 2013

DATE OF DECISION:

September 13, 2013

2013-12

NEUTRAL CITATION:

2013 ONAFRAAT 12

LINE 86 MUNICIPAL DRAIN 2013 Township of Woolwich

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 Regional Municipality of Waterloo, Kitchener, Ontario under Section 54(1) of the Drainage Act from the decision of the Court of Revision on the Line 86 Municipal Drain 2013 in the Township of Woolwich.

Before: Paula Lombardi, Vice-Chair; Enio Sullo, Vice-Chair

Appearances: W.J. Dietrich, P. Eng., Dietrich Engineering Limited – Engineer who prepared the Report Mark Bauman, Councillor representing for the Township of Woolwich Richard Brookes, Counsel for Regional Municipality of Waterloo Ed Switenky, Manager of Transportation for the Regional Municipality of Waterloo Robert Shuh – Assessed Landowner Linda Crew representing Don Hoffer – Assessed Landowner Don Hoffer, Assessed Landowner

DECISION OF THE TRIBUNAL

This hearing was held in the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) Hearing Room in Guelph, Ontario on September 4, 2013. The Engineer’s Report dated March 22, 2013 for the Line 86 Municipal Drain 2013 (the “Report”), was prepared by Dietrich Engineering Limited, and signed by W.J. Dietrich, P. Eng., (the “Engineer”). The appeal to the Tribunal was filed by Richard Brookes, Counsel for the Regional Municipality of Waterloo (the “Regional Municipality”).

Valrie Hummel, Deputy Clerk of the Township of Woolwich (the “Township”), 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 the hearing. The Township filed an Affidavit of Service, dated September 3, 2013, as proof that all parties had been served with the notice of hearing.

At the start of the hearing, the Tribunal undertook to identify the parties to the hearing. Councillor Bauman advised that he was a Councillor for the Township of Woolwich as well as a Member of the Court of Revision whose decision is the subject of this appeal. Councillor Bauman requested party status and indicated that he was representing Council for the Township and the Court of Revision, noting that the members of Council and the Court are one and the same. Further, Councillor Bauman indicated that he also represented Messrs. Shuh and Hoffer, assessed landowners on the drain.

Mr. Brookes objected to Councillor Bauman representing the Court of Revision (the “Court”) and stated that as a member of the Court that decided the matter, it would be improper for him to take an adversarial position at this hearing. Mr. Brookes suggested that Councillor Bauman’s statements regarding the Court should be restricted to process only. However, Mr. Brookes had no objection to Mr. Bauman representing the Township.

The Tribunal put it to Councillor Bauman that it would be inappropriate for him to represent the Court as an advocate but he was at liberty to represent the Township. The Tribunal also put it to Councillor Bauman that as a Councillor representing the Township, it would also be considered inappropriate for him to represent only the assessed landowners Shuh and Hoffer and not the other assessed landowners. After considering the matter, Councillor Bauman decided to participate only as a representative of the Township.

The Tribunal then asked Messrs. Shuh and Hoffer if they were prepared to proceed with the hearing without the services of Councillor Bauman. Mr. Shuh stated that he had not come prepared to provide direct testimony and that he would be “considerably disadvantaged” in proceeding. Just before taking a recess, the Tribunal gave the option to Messrs. Shuh and Hoffer to adjourn the hearing by up to a week to provide them with sufficient time to prepare. Upon return from the recess, Mr. Shuh stated that he did not want to cause a delay and that he was prepared to continue with the hearing. Ms. Linda Crew advised that she would represent Mr. Hoffer who was also in attendance and that she was also prepared to continue with the hearing.

Background

The project is located on parts of Lots 51, 52, 53 and 69, German Company Tract (G.C.T.), Township of Woolwich in the vicinity of Line 86 (Church Street East) and Northfield Drive East. The land use in the area is predominantly agricultural.

The Engineer’s Report for the Line 86 Municipal Drain was prepared pursuant to a petition under Section 4 of the Drainage Act (“Act”) from the Regional Municipality of Waterloo who is the Road Authority for Line 86 and Northfield Drive East. The proposed work includes 795 m (2,608 ft) of 450 mm (18”) to 600 mm (24”) diameter tile drain, 3 road crossings, 9 catch basin and 156 m (512 ft) of open drain, all for an estimated cost of $195,700. The drain will serve a watershed of 61.8 ha (153 acres) made up of 5.3 ha (13 acres) of roads and 56.5 ha (140 acres) of privately owned lands. The Report assesses the cost of the work to the owners of 12 privately owned land parcels and 3 roads, Line 186 and Northfield Drive East (Regional Municipality of Waterloo), and Hill Street (Township of Woolwich).

The Report was considered and adopted by Council for the Township on April 9, 2013. The Court of Revision heard appeals from 3 assessed landowners, Messrs. Hoffer, Shuh and Geisel on May 28, 2013. The decision of the Court was to reduce the benefit assessment to Messrs. Hoffer and Shuh by $3,123 and $3,242 respectively, and re-allocate the total amount of $6,365 on a 50/50 basis to Mr. Geisel and the Regional Municipality. The Court dismissed the appeal from Mr. Geisel.

Issues

1. Should the decision of the Court of Revision be upheld?
2. Should any changes be made to the assessments?

Evidence

Mr. W. J. Dietrich, P. Eng., Dietrich Engineering Limited, the Engineer who prepared the Report

Mr. Dietrich described the process he followed in preparing his Report and provided an overview of the project, including the information contained in the background above.

Referring to a series of 7 calculation sheets which he put into evidence, Mr. Dietrich explained the principles and methodology that he applied in his determination of the Schedule of Assessments contained in his Report. The Engineer testified that in assessing the $195,700 estimated cost of the project, he first separated out the special benefits under Section 26 of the Act, which requires road authorities to be assessed for increased costs to the project caused by the existence of the roads. This resulted in total special benefit assessments of $81,225 - $40,170 and $24,340 was assessed to the Regional Municipality for Line 86 and Northfield Drive East respectively, and $16,715 to the Township for Hill Street.

Mr. Dietrich gave evidence that after taking out the special benefit assessments, he then assessed the remaining $114,475 to benefit and outlet. He testified that he first separated the amount into $18,800 for the open drain and $95,675 for the closed tile drain. For the open drain, he assessed $12,000 (approximately 64%) of the cost as benefit and $6,800 (approximately 36%) as outlet. For the closed drain, he assessed $64,300 (approximately 66%) as benefit and $31,375 (approximately 34%) as outlet. Mr. Dietrich stated that he used his best judgment in assigning the overall proportion of benefit and outlet assessments.

Mr. Dietrich explained that in assigning the benefit assessments to specific land parcels and roads, he considered advantages that the land parcel or road would receive from the proposed drainage works such as higher market value, increased crop production, improved appearance, and better control of surface and subsurface waters.

Although his calculation sheets provided details of the benefit assessments to all of the lands parcels and roads, Mr. Dietrich limited his detailed testimony to the benefit assessments belonging to Messrs. Geisel, Hoffer and Shuh, and the Regional Municipality, whose benefit assessments were altered by the Court of Revision.

Mr. Dietrich said that he assessed a $5,000 benefit assessment to Mr. Geisel for the provision of a municipal drain outlet to 21.6 ha (53.4 acres) of his land.

Mr. Dietrich testified that Mr. Hoffer had requested that the new tile drain be routed along the easterly and southerly sides of his property along the lot line, instead of across his property along the route of the existing private tile, and also requested that the drain be comprised of a sealed polyethylene pipe system. He said the route requested by Mr. Hoffer was along higher ground and resulted in an extra drain length of approximately 100 m (328 ft). In all, Mr. Dietrich estimated that the extra cost for rerouting the drain and using sealed pipe across Mr. Hoffer’s property was $25,000. He further stated that he assigned a benefit assessment of $8,000 to Mr. Hoffer which represents approximately 18% of the $45,700 cost of the work across those lands.

In the case of Mr. Shuh’s lands, Mr. Dietrich said that he assigned a benefit assessment of $5,000 which represents approximately 33% of the $14,800 cost of the work across those lands. He explained that Mr. Shuh’s lands will have a higher market value due to the installation of the new tile drain because of reclaimed land, the provision of a legal outlet for existing and future drainage, increased crop production as well as better control of surface water. He added that the new drain will have 7 times the capacity of the existing private tile.

For the Regional Municipality, Mr. Dietrich testified he assigned a benefit assessment of $32,000 which represents approximately 33% of the $95,675 net total amount to be assessed for the closed drain after deducting the special assessments.

Mr. Shuh put it to Mr. Dietrich that his property will not be increased in value since he already has a working private drainage system in place. Mr. Shuh also challenged Mr. Dietrich on his claim that the new drain will result in increased crop production. Mr. Dietrich remained steadfast on his assertion that Mr. Shuh’s land value will increase for the reasons indicated and that he was justified in imposing the assessments in his Report.

Speaking on behalf of Mr. Hoffer, Ms. Crew challenged Mr. Dietrich’s benefit assessment to the Hoffer property in the amount of $8,000. Mr. Dietrich responded that in his opinion, the benefit assessment to Mr. Hoffer is very fair, particularly considering the total cost of the tile drain on the Hoffer property was $45,700 which includes $25,000 extra cost for modifications to the drain requested by Mr. Hoffer.

During examination by Mr. Brookes, Mr. Dietrich either agreed or conceded to the following:

• Mr. Geisel’s lands are located upstream of Mr. Hoffer’s lands and are being farmed;
• the application of fertilizers is a normal part of farming operations;
• Mr. Hoffer’s land is a reclaimed gravel pit housing a pond and an air strip;
• the filing of a Section 4 petition for drainage by the Regional Municipality was necessary because Mr. Hoffer blocked off the tile going from the Geisel lands to the Hoffer lands, which resulted in water backup on Line 86;
• Mr. Hoffer requested a sealed pipe system across his property because he did not want water from the pipe to contaminate is pond;
• Mr. Geisel’s requests resulted in extra cost to the drain in the amount of $25,000 that are being paid for by the Regional Municipality and upstream landowners; and
• Mr. Shuh currently has no legal outlet.

Responding to questions from the Tribunal, Mr. Dietrich clarified that the reason for Mr. Hoffer’s request to reroute the drain was to keep his land unencumbered by a tile drain to allow for possible future development. The Tribunal asked Mr. Dietrich if he had considered imposing a special assessment to Mr. Hoffer to pay for the extras that he requested. Mr. Dietrich stated that he did not feel that a special benefit was warranted.

Mr. Mark Bauman, Councillor for the Township of Woolwich

Councillor Bauman testified that he has been dealing with this drainage issue for the past 13 years that he has been a member of Township Council. He said that Messrs. Hoffer and Shuh put in pipes at their own expense to prevent erosion of their properties. Under the proposed drainage scheme, additional lands owned by Mr. Geisel will be brought into the watershed which will result in extra stress on the drainage system.

Councillor Bauman testified that he attended a site meeting several years ago after Mr. Hoffer had blocked off the tile coming from Mr. Geisel’s upstream lands because nutrients from the farming operation were entering his pond. He recalled that a representative of the Regional Municipality who was also present at the site meeting, told Mr. Hoffer that if he wanted to block the tile, he should do so on his own property, not on the Line 86 road right-of-way. Mr. Bauman further testified that the blockage of the tile by Mr. Hoffer resulted in flooding of the roadside ditches which continues to today.

Mr. Bauman argued that the historical expense incurred by Messrs. Hoffer and Shuh should be used to offset their current assessments.

Mr. Ed Switenky, Manager of Transportation for the Regional Municipality of Waterloo

Mr. Switenky testified that Mr. Hoffer’s land is artificially raised and the Regional Municipality did not have a problem with drainage until Mr. Hoffer blocked the tile on his property which resulted in flooding of Line 86.

Mr. Robert Shuh, Assessed Landowner

Mr. Shuh testified that water coming off the Regional Municipality’s roads flows across his property. He said that he hired an engineer and a contractor and tiled his land, all at his cost, without any help from the Region or others.

Mr. Shuh argued that he had been assessed too high because the Engineer had failed to apply the fairness test. He suggested that the project is skewed to the benefit of the Regional Municipality and Mr. Geisel who are not paying their fair share.

Mr. Shuh dismissed the Engineer’s assertion that the new drain would result in increased crop production on his lands. Instead, he suggested that the crop production would decrease.

Mr. Shuh testified that he had no need for the new tile drain since his land is already systematically tile drained. Accordingly, he reasoned that he should have no assessment into the new drain.

Ms. Linda Crew for Don Hoffer and Mr. Don Hoffer, Assessed Landowner

Ms. Crew testified that Mr. Hoffer blocked the tile on his property because he was concerned with the hazardous levels of phosphates coming off upstream lands that were contaminating his pond. She testified that tests of the water confirmed there was a high level of phosphates in the pond.

Although represented by Ms. Crew, Mr. Hoffer opted to provide direct testimony and was sworn in by the Tribunal. Mr. Hoffer testified that his pond, which he currently uses for recreational purposes, was being polluted by fertilizers coming off upstream lands. He confirmed that his land is a rehabilitated gravel pit and that the pond is manmade. Mr. Hoffer provided the Tribunal with four photographs taken about 1.5 years ago which he said showed the polluted water coming onto his property. He noted that two of the photographs showed the plate he had put in place in front of the tile to block the flow from upstream. He further testified that the air strip on his land continues to be active and that the rest of the land is used for growing hay, without the use of fertilizers.

Responding to questions from Mr. Brookes, Ms. Crew testified that Mr. Hoffer had not involved the Ministry of the Environment with respect to the high level of phosphates entering his pond.

Summation by Mr. Brookes – Counsel for the Regional Municipality of Waterloo

Mr. Brookes argued that it is unreasonable for Mr. Hoffer to maintain a pristine pond in the middle of an agricultural area. He noted that it was Mr. Hoffer’s action to block the tile that precipitated the filing of the Section 4 petition by the Regional Municipality.

Mr. Brookes stated that the Regional Municipality agrees and accepts the Engineer’s Report, including the assessments and asked that the Tribunal set aside the decision of the Court of Revision and let the Report stand as submitted by the Engineer.

Findings;

The Tribunal did not hear any substantive evidence to support the decision of the Court of Revision to reduce the assessments to Messrs. Hoffer and Shuh. Accordingly, the Tribunal will set aside the decision of the Court of Revision.

The Tribunal does not accept the arguments made by Mr. Shuh that the new drain will be of no benefit to him because he already has a tile drainage system and that new drain will result in decreased crop production on his land. The evidence of the Engineer is that new tile drain will provide Mr. Shush with a “legal” outlet and will have capacity that is 7 times that of Mr. Shuh’s existing private tile drain. It is well known in agricultural circles that improvements in drainage will invariably result in increased crop production. The Tribunal finds that the assessments assigned to Mr. Shuh by the Engineer are fair and equitable under the Act.

The Tribunal also does not accept the arguments made by Mr. Hoffer that his assessments are too high. In fact, in view of the expensive requests made by Mr. Hoffer, the Tribunal finds that Mr. Hoffer was significantly under assessed. Therefore the Tribunal is perplexed by the Court of Revision’s decision to further reduce his assessment and impose it on the upstream landowners; Mr. Geisel and the Regional Municipality.

The Tribunal finds that although the principles applied by the Engineer to determine the schedule of assessments are consistent with the Act, those principles were not followed in the case of Mr. Hoffer. The uncontested evidence of the Engineer is that there is an estimated additional cost of $25,000 for extra work on the Hoffer lands resulting directly from the special requests made by Mr. Hoffer. Those requests included the use of watertight polyethylene pipe (instead of normal concrete tile) and circuitously rerouting the drain on higher ground along the edge of his property; all to avoid leakage of water from the tile into his pond and to leave his property unencumbered to allow for possible future development. Mr. Hoffer contends that the water that will flow in the proposed tile will be polluted by phosphate fertilizers emanating from the upstream agricultural lands, which will contaminate the pond he uses for recreational purposes. The Engineer did not assign any special benefit assessment to Mr. Hoffer to accommodate his requests, choosing instead to spread the extra costs among the upstream lands and roads. For the reasons set out below, the Tribunal finds that the Engineer ought to have assessed Mr. Hoffer a special benefit to cover the extra costs of the project which go above and beyond the normal concrete tile drain installed along the low lying and natural flow of Mr. Hoffer’s land approximately along the route of the existing private tile drain.

The application of fertilizers on agricultural lands is normal farm practice and it is a reasonable expectation that some residual fertilizer will be carried away along the ground or will percolate into the subsurface drainage system and eventually find its way downstream. It is therefore not surprising that phosphates where identified by tests of the runoff flowing onto Mr. Hoffer’s lands. There was no evidence presented at the hearing to suggest that the agricultural landowners in the watershed were doing anything outside of normal farming practices with respect to the application of fertilizers on their lands. The Tribunal finds that it is unreasonable for Mr. Hoffer to expect the owners of agricultural lands to finance extraordinary measures to prevent normal agricultural runoff from entering his pond. The Tribunal is of the view that the extra cost to install watertight polyethylene pipe to prevent agricultural runoff from entering the pond, is for the sole benefit of Mr. Hoffer.

Currently there is a tile drain that crosses Mr. Hoffer’s property which served as an outlet for upstream lands and roads up to the time that blocked it. The tile flows downstream in straight forward manner, following the low ground, along the natural lay of the land. Although it would have been most economical and reasonable to install the new tile drain along the route of the existing tile, the Engineer opted to route tile on higher ground, circuitously along the outer edge of the property to accommodate Mr. Hoffer’s request. The rerouting of the tile will permit Mr. Hoffer to abandon his private tile drain and leave his land unencumbered by a tile drain, clearly to his benefit.

There was no evidence to suggest that the Engineer ever discussed the possibility that Mr. Hoffer could be assessed a special benefit for the extra costs associated with his requests. Accordingly it appears that Mr. Hoffer made his requests under the assumption that he would not have to bear the entire cost of the extras. Mr. Hoffer may have reconsidered his requests had he been made aware the he would be assessed a special benefit for the extra work. For this reason, the Tribunal will provide an opportunity for Mr. Hoffer to reconsider his requests, prior to being assessed the entire benefit for the costs associated with the requests.

With the knowledge that this Tribunal Order will now assess a special benefit to Mr. Hoffer for the entire amount of the extra costs associated with his requests, the Tribunal will give Mr. Hoffer thirty (30) days to decide whether or not he wants to continue to pursue his special requests. If Mr. Hoffer wishes to alter his requests, this Tribunal Order will direct the Engineer to amend the Report.

In reviewing Mr. Hoffer’s assessments, the Tribunal considered that the Engineer may have included a small portion of the extra costs associated with Mr. Hoffer’s requests, in the benefit assessment to his property. For this reason, the Tribunal will include a reduction in Mr. Hoffer’s assessment for benefit.

If Mr. Hoffer chooses to alter his requests which will necessitate a change in the routing of the drain and the Report, the Engineer will also be ordered to amend the allowances to Mr. Hoffer under Sections 29 and 30 of the Act as required.

ORDER OF THE TRIBUNAL

The Tribunal orders as follows:

1. The decision of the Court of Revision is set aside.

2. Within thirty (30) calendar days of the date of this decision, Mr. Hoffer (Roll No. 4-204) shall notify the Township of Woolwich in writing of his choice of either a) or b) below. If the Municipality has not received notification in writing from Mr. Hoffer by end of the thirtieth (30th) business day following the date of this decision, then part a) of this order shall apply.

a) The project shall remain in accordance with the Engineer’s Report. Mr. Hoffer (Roll No. 4-204) shall be assessed a special benefit assessment of $25,000 offset by reductions in benefit assessment as follows:

Mr. Hoffer (Roll No. 4-204)................................. $3,000

Mr. Geisel (Roll No. 4-200).................................. $2,000

Line 86 (Regional Municipality)......................... $12,500

Northfield Drive. E. (Regional Municipality)....... $7,500

b) In consultation with Mr. Hoffer (Roll No. 4-204), the Engineer shall redesign the tile drain on Mr. Hoffer’s land and amend the Report to delete any or all of the special requests by Mr. Hoffer (including the circuitous routing of drain and the water tight polyethylene pipe) and shall adjust the allowances to Mr. Hoffer under Section 29 and 30 of the Act, to reflect the redesign :

i. If all Mr. Hoffer’s requests are deleted, the overall estimated cost of the project shall be reduced by $25,000 offset by following reductions in benefit assessment:

Mr. Hoffer (Roll No. 4-204)................................. $3,000

Mr. Geisel (Roll No. 4-200).................................. $2,000

Line 86 (Regional Municipality)......................... $12,500

Northfield Drive. E. (Regional Municipality)....... $7,500

The Engineer shall also adjust the overall estimated cost of the project for any required changes to the allowances to Mr. Hoffer under Section 29 and 30 of the Act.

ii. If only a portion of Mr. Hoffer’s requests are deleted, the overall estimated cost of the project shall be reduced by the Engineer’s estimated value of the deletions offset by corresponding proportional reductions to benefit assessment to the parties listed in i. above. The Engineer shall also adjust the overall estimated cost of the project as required to accommodate any changes to Mr. Hoffer’s allowances under Sections 29 and 30 of the Act.

3. The Engineer shall make adjustments to the Schedule of Assessment for Maintenance as necessary to reflect any potential changes to assessments contemplated in 2 above.

4. The project may proceed to construction upon completion of the design and/or assessment changes above.

5. The cost to modify the design and the Report under Item 2b) above shall not form part of the drainage project but rather shall be borne by the Township of Woolwich.

6. Except as ordered in 5 above, 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 13th day of September, 2013.