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:

Gingerich Road Drain

Township of Wilmot

Gingerich Road Drain (RE) 2013 ONAFRAAT 4

STATUTE:

Drainage Act

HEARING:

April 17, 2013

DATE OF DECISION:

May 1, 2013

2013-04

NEUTRAL CITATION:

2013 ONAFRAAT 4

Gingerich Road Drain

Township of Wilmot

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 the Regional Municipality of Waterloo, Kitchener, Ontario and Donald and Rose Wagler, New Hamburg, Ontario under Section 54(1) of the Drainage Act from the decision of the Court of Revision on the Gingerich Road Drain in the Township of Wilmot.

Before: Paula Lombardi, Vice-Chair; Jack Young, Vice-Chair; Richard Smelski, Member

Appearances:

Donald Wagler - Appellant and landowner

Richard Brookes – Counsel for the Appellant, Regional Municipality of Waterloo

Ed Switenky – Manager, Transportation Operations for the Regional Municipality of Waterloo

John Kuntze - K. Smart Associates Limited – Engineer who prepared the Report

DECISION OF THE TRIBUNAL

This hearing was held in the Township of Wilmot (the “Municipality”), in the community of Baden, Ontario on April 17, 2013. Mr. and Ms. Wagler (the “Waglers”), and the Regional Municipality of Waterloo (the “Region”) 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 the Revision dated November 21, 2012 with respect to their assessments in the report on the Gingerich Road Drain prepared by K. Smart Associates Limited dated August 20, 2012 ( the “Report”) and signed by John Kuntze, P.Eng (the “Engineer”).

Barbara McLeod, Clerk for the Municipality, performed the duties of the Clerk of the Tribunal.

Preliminary Matters

Prior to the hearing, the Tribunal issued an Order dated January 11, 2013, making all landowners assessed or compensated in the Report parties to this hearing. The Municipality filed an Affidavit of Service with the Tribunal as proof that all landowner parties had been served with notice of the hearing dated January 11, 2013.

Background

The Gingerich Road Drain was initiated when the Waglers, as property owners, on April 13, 2004, petitioned the Municipality for drainage works under section 4 of the Act to establish, improve or otherwise legalize outlets for the Wagler Property.

In response to the Wagler petition, the Municipality, on April 21, 2004, appointed K. Smart & Associates Limited to prepare a report under the Act. Mr. John Kuntze, a professional engineer, was designated the Engineer in charge of the project in accordance with section 8(2) of the Act.

The Report provides for the drainage of the watershed that is approximately 41 hectares in area. The majority of the property is owned by the Waglers. The watershed consists of two roads: a Township of Wilmot Road (Sandhills Road) and a Regional Road (Gingerich Road); along with a small area of property owned by abutting landowners.

The purpose of the Report is to provide an improved outlet for the property owned by the Waglers and described as the north part of Lot 13, Concession South of Snyders Road and is located on the south side of Gingerich Road and the west side of Sandhills Road (the “Wagler Property”). The Wagler Property was originally part of a larger farm owned by Mr. Schneller that extended northwards with frontage along Snyders Road.

The work proposed in the Report includes the construction of approximately 120m of open drain on the Township of Wilmot land north of Gingerich Road, 234m of closed drain tile on the Wagler Property south of the Gingerich Road right-of-way and the Gingerich Road crossing. The total estimated cost is $37,900 of which $6,863 was assessed to the Waglers; $4,401 to the Township of Wilmot; $26,261 to the Region; and very small amounts to the abutting property owners in the area.

The Court of Revision for the Municipality on November 19, 2012 ordered that the $4,000 benefit assessment to D. & R. Wagler be reduced to $2,000 and the Region of Waterloo assessment for Gingerich Road be increased by $2,000.

It should be noted that an appeal to the Tribunal is heard as a “trial de novo” meaning it is considered a new hearing and the Tribunal is not bound by any prior decision and all the evidence is heard and considered on the basis that it is a new hearing.

The appeal to the Tribunal by the Region requested that the assessments set out in the Report be upheld.

The appeal by the Waglers sought to have their assessment reduced on the basis that there are lands and/or roads that should have been assessed in the Report that had not been assessed by the Engineer.

The Issue

Should the assessments as set out in the Engineer’s Report dated August 20, 2012 be amended?

Evidence

John Kuntze, P.Eng. - K. Smart Associates Limited

Mr. Kuntze testified that he prepared the Report pursuant to the section 4 petition for drainage filed by the Waglers. Mr. Kuntze provided a historic overview of the Wagler Property and described the drainage problems historically experienced on the Wagler Property. The work proposed in the Report is the construction of a closed tile on the Wagler Property, an open drain on the township land north of the Gingerich Road right-of way and the Gingerich Road crossing.

Mr. Kuntze provided a detailed description and overview of the existing conditions of the drainage area, the process followed in preparing the Report and how the assessments were calculated. The Report indicates that there were several on-site meetings with the first being held with Mr. Wagler in the summer of 2004. At that meeting, Mr. Wagler identified two flooded areas on his property along the Gingerich Road frontage. The first area being the northwest corner of the property and the second area located approximately 175m east along Gingerich Road.

The Wagler Property occupies the majority of land in the watershed. The Tribunal notes that there appeared to be a considerable amount of delay in moving this drainage project forward. The petition was filed by the Waglers in 2004 and the Engineer’s Report was not completed until 2012. There was no explanation provided by the Engineer for this delay, however, and neither the Region nor the Waglers commented or expressed concern with the delay.

When the first Highway 7 & 8 Baden by-pass was constructed, it divided the Schneller farm into two parcels. The portion of the Schneller farm located south of Gingerich Road is the property now owned by the Waglers. The portion of the Schneller farm located north of Gingerich Road is a fully developed residential area.

With the construction of the second Highway 7 & 8 by-pass further south of the community of Baden, responsibility for the Gingerich Road Highway 7 & 8 by-pass was delegated to the Region. The Engineer obtained a historic plan from the Region indicating that drainage for the two parcels of the Schneller farm was provided by three (3) large concrete culverts located under Gingerich Road across the frontage of the Wagler Property. The Engineer thought that these culverts were constructed primarily to provide livestock access under the road for the former Schneller farm. This plan also indicated catchbasins on both sides of Gingerich Road at the two westerly culverts. However, no detail was provided on the inlet or outlet drains for these catchbasins but it appeared to indicate the existence of a tile drainage system that may have been planned and constructed at the time the new road was constructed. Upon questioning by the Tribunal, the Engineer confirmed that what he described as a catchbasin is more appropriately referred to as a junction box.

The Engineer reviewed aerial photographs for the area starting from 1980 to 2013 that he obtained from the Region and the Grand River Conservation Authority. It was noted that there was no development on what would be the northern portion of the Schneller farm, north of Gingerich Road, until approximately the year 2000.

The Engineer was only able to find one of the four catchbasins (junction boxes) identified on the old highway plans at the easterly location on the south side of Gingerich Road and noted that it was constantly overflowing. The purpose of the initial investigation was to determine whether the existing highway drainage system could be utilized if it had a proper outlet. As part of the investigation, the Engineer dug a ditch on property owned by the Township, north from Gingerich Road, for 125 metres to see if this could provide an outlet for the tile drainage at the road. This resulted in the discovery of the catchbasin (junction box) on the north side of the road and old clay tile that would have been used as the outlet for the catchbasin. When the catchbasin (junction box) was opened up to drain into the ditch, a catchbasin on south side of Gingerich Road was discovered. This resulted in drainage for the westerly area of the Wagler property but had no impact on the easterly area. As a result this investigation, the Report was prepared providing a total cost estimate of $37,900.

Mr. Kuntze testified that the Waglers were assessed 20% of the cost of the drain as their property is to be provided with a legal outlet that, based on his historic review, is currently lacking for the Wagler Property. Mr. Kuntze explained that $1,100 allowance was granted to the Waglers for the construction of the tile drain running from the westerly catchbasin to the easterly low area. This allowance represents a onetime payment to the Waglers for the disruption resulting from the construction activities.

For the drainage works, Mr. Wagler was assessed a benefit pursuant to section 22 of the Act. Section 22 states “Lands, roads, buildings, utilities or other structures that are increased in value or are more easily maintained as a result of the construction, improvement, maintenance or repair of drainage works may be assessed for benefit.” The Engineer testified that a benefit was assessed to the Wagler Property as the drainage works being proposed will: (a) result in an increased, or improved, area of cultivation; (b) add value to the property due to the construction of a municipal drain; and, (c) provide a legal outlet for the Wagler Property.

Appellant - Regional Municipality of Waterloo

Counsel for the Region indicated that the Region is responsible for numerous drains and needs to ensure that it is appropriately assessed for improvements under the Act. The Region is interested in maintaining the integrity of the Act and ensuring that it only pays for its fair share of the work. The Region took issue with the reduction of the benefit to the Wagler Property imposed by the Court of Revision and the increase in the benefit assessment to the Region.

Mr. Ed Switenky, Manager Transportation Operations for the Regional Municipality of Waterloo, testified on behalf of the Region. Mr. Switenky testified that the Region does not have any concerns with drainage in the area and the existing drainage does not impact the road in any manner. Mr. Switenky confirmed that the Region would not have petitioned for the works being undertaken by the Engineer’s Report.

In summary, the Region urged the Tribunal to reject the increased assessment to the Region and uphold the assessments set out in the Report.

Appellant – Donald Wagler

Mr. Wagler claimed he had no issue with the methodology used in determining the assessments except to indicate that the drainage problems have existed since the 1980s and that the Region was made aware of the problem in the 1990s. Mr. Wagler testified that, in his opinion, the Region failed to address the problems and no compensation has been provided for the twenty-three years that this area of his property could not be worked. Mr. Wagler did not provide any evidence to challenge the assessments or to show that the benefits were inappropriately allocated and not in accordance with the provisions of the Act.

In summary, Mr. Wagler requested that the decision of the Court of Revision be upheld. Mr. Wagler commented that he is simply asking the Tribunal to be dealt with fairly as he did not create the drainage problems.

Mr. Wagler confirmed on cross-examination the statement he made before the Court of Revision that he does not have an issue paying future maintenance costs associated with the drain because he would be receiving a benefit from the drain. Mr. Wagler also agreed that, once the drain was constructed, he receives a benefit as the tenant farmer will be able to cultivate the area. This statement was qualified by Mr. Wagler as he indicated that the improved drainage simply puts the useable land for cultivation back to the area that was available for cultivation prior to the drainage problems.

Findings

The Tribunal finds that the Engineer’s methods of calculating the benefits to be technically sound, compliant with the Act, and in keeping with accepted engineering practices.

There was no evidence presented at the hearing to rationalize or justify the decision of the Court of Revision to reduce the benefit assessment of the Wagler property by $2,000 and impose that same amount onto the Region. The Tribunal, although sympathetic to the concerns expressed by Mr. Wagler along with the unexplained delay in preparing the Report, was not persuaded that the benefit was incorrectly calculated or did not reflect the provisions of the Act.

The Tribunal agrees with the Region’s arguments that the Court of Revision, while its actions may have been sympathetic, failed to take into consideration the requirements of the Act when it reduced the Wagler’s benefit assessment. The benefit assessment provided by the Engineer under section 22 was calculated on a fair basis and there was no dispute that the Waglers receive a benefit from a legal drain, and more valuable agricultural land, all of which create an enhancement to the value of the Wagler Property.

Therefore, it is the Tribunal’s decision that the assessments as set out in the Report are appropriate and that the decision of the Court of Revision is set aside.

ORDER OF THE TRIBUNAL

The Tribunal orders as follows:

1. That the assessments as set out in Schedule A- “Schedule of Assessment for Construction” in the Engineer’s Report dated August 20, 2012 be confirmed.

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 the parties shall be responsible for their own costs.