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, (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:
Ruscom River Outlet No. 3 Drain Town of Lakeshore
Ruscom River Outlet No. 3 Drain (RE) 2014 ONAFRAAT 20
STATUTE:
Drainage Act
HEARING:
July 18, 2014
DATE OF DECISION:
July 29, 2014
2014-20
NEUTRAL CITATION:
RUSCOM RIVER OUTLET NO. 3 DRAIN
TOWN OF LAKESHORE
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 Dennis and Rosemary Jubinville under Sections 48(1) and 54(1) of the Drainage Act from the Engineer’s Report and from the decision of the Court of Revision on the Ruscom River Outlet No. 3 Drain in the Town of Lakeshore.
Before: Jeffrey Hewitt, Vice-Chair; Ed Dries, Member; Bill Schaefer, Member
Appearances:
Dennis and Rosemary Jubinville - Appellants
Shane McVitty, P. Eng. – N. J. Peralta Engineering Ltd., Engineer who prepared the Report
Jill Fiorito – Drainage Superintendent for the Town of Lakeshore
DECISION OF THE TRIBUNAL
This hearing was held in the Town of Lakeshore (the “Municipality”), in Belle River, Ontario on July 18, 2014. The Engineer’s Report dated January 17, 2014 for the Ruscom River Outlet No. 3 Drain (the “Report”) was prepared by N. J. Peralta Engineering Ltd. (the “Engineer”) and signed by Shane McVitty, P. Eng.
Mary Masse, 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 in the Report parties to this hearing. The Municipality filed an Affidavit of Service with the Tribunal as proof that all parties had been served with the Notice of Hearing.
Overview
A Report dated January 17, 2014 was prepared by N. J. Peralta Engineering Ltd. Mr. Shane R. McVitty, P. Eng., a professional engineer with that firm, was designated under Section 8(2) of the Drainage Act with overall responsibilities for the report.
The Ruscom River Outlet No. 3 was initiated under Section 4 of the Act on a petition signed by the Road Authority of the County of Essex. The petition was deemed valid under Section 4(1)(c) of the Act. This proposed drainage works is one of nine new drainage works intended to provide sufficient legal outlet for Essex County Road 31.
The proposed works involve the reconstruction of an existing private covered drain across the property owned by Dennis and Rosemary Jubinville (Roll No. 610-04300). The existing drain was known to provide service to the residential lots on each side of the road in the immediate area, as well as agricultural lands west of the road.
The drain extends from the west side of County Road 31 easterly through the Jubinville property to discharge through a timber sheet pile wall at the west side of a boat well on the property. According to the Report, the sheet pile walls on the north and west sides of the boat well are in poor condition. A boathouse constructed on piles sits within the boat well. Due to low lake levels, the boat well is essentially dry and has not been in use for many years; as a result, the boathouse has been modified and is currently used as a storage shed. The existing covered drain was found to be in a state of partial collapse.
Generally, the Report recommends the construction of a new drain from County Road 31 to the Ruscom River. It recommends the removal of the boathouse and filling of the boat well. It also recommends the construction of a new steel sheet pile wall at the outlet of the new drain at the Ruscom River.
The Appellants, Dennis and Rosemary Jubinville, received damage allowances for the loss of a silver maple tree ($100) and the loss of the boathouse ($1,000). They received no consideration for the boat well. They were assessed a total Benefit Assessment of $9,434 and an Outlet Liability of $335. Mr. Jubinville made presentations at the Meeting to Consider the Report and the Court of Revision requesting consideration to reduce or eliminate his Benefit Assessment. He and his wife subsequently filed an appeal to the Tribunal under Section 48 regarding allowances and under Section 54 regarding their assessment.
Issues
- Should the allowances provided as shown in the Report against Roll No. 610-04300 be modified?
- Should the assessments for Benefit and Outlet Liability as shown in the revised assessment schedule to the Report against Roll No. 610-04300 be modified?
Evidence
Shane McVitty, P. Eng.
The Engineer testified that an extensive field investigation was carried out along and adjacent to an existing closed drainage system extending from the west side of County Road 31 easterly to the Ruscom River. The investigation included gathering all topographical data, a sewer video inspection, a tree assessment and research into an existing easement and private drainage agreement that applied to this particular drainage outlet. Extensive consultation with the property owners and the various approval agencies was noted.
The existing drain was known to have no status under the Drainage Act. The Engineer provided copies of an agreement that appears to illustrate the location of the covered drain within an easement that crosses the Jubinville property.
On May 18, 2012, the Engineer held a meeting with all potentially affected property owners and such meeting was attended by the Jubinvilles. Mr. McVitty also met on-site with the Jubinvilles on two subsequent occasions to review and discuss alternative design options as well as had additional telephone conversations with them. The primary issues revolved around the impacts of new construction on the drain, a tree near the alignment of the drain, the boathouse, the boat well and the wood and steel sheet pile walls around the boat well. Two design options were developed and discussed in detail with the Jubinvilles. Preliminary cost estimates as well as the benefits and shortcomings of each option were also presented and discussed with them.
Mr. McVitty testified that the Jubinvilles verbally confirmed their preference for Option Two, which generally included the following works on their property:
replace the existing drain on the Jubinville property with 750 mm dia. pipe
remove the tree near the alignment of the drain
completely remove the frame and aluminum clad boathouse
cut down the piles supporting the boathouse
remove or cut down the sheet pile walls on the north and west side of the boat well
fill in the boat well with clean fill
extend the 750 mm pipe through the filled boat well to the Ruscom River
construct a new steel sheet pile wall at the Ruscom River at the outlet of the new pipe
The Engineer testified that he understood the condition of the Jubinville property to be as follows:
the boat well has not been used in several years
the boathouse is used for storage and is in fair condition
only a portion of the boathouse is useful for storage
the west and north sheet pile wall of the boat well require complete replacement
Mr. McVitty confirmed that he was clearly aware that Mr. Jubinville was opposed to any assessment of cost related to the removal of the boathouse or the cost of a new shed to replace the boathouse. Mr. McVitty committed to complete the report on the basis of the agreed upon works and address Mr. Jubinville’s concerns within the provisions under the Act for allowances and assessments.
After the report was provisionally adopted by the Municipality, an appeal related to the drainage area on the agricultural lands west of the County Road 31 was filed. Mr. McVitty presented the revised Schedule of Assessment and referenced a revised plan (Sheet 1 of 4) stamped and dated March 18, 2014. The Court of Revision adopted this revised Assessment Schedule.
Mr. McVitty presented a detailed summary of the assessment breakdown. The costs related to various components of the work were compiled and the assessment allocations were defined and justified. The rationalization for the allowances and compensation was also presented. His evidence relating directly to the assessment against the Jubinville property (Roll No. 610-04300) is summarized as follows:
The property is not assessed any portion of the cost of the drainage works from Sta. 0+000 to Sta. 0+047.4.
The property is assessed 50% of the cost to reconstruct 5.2 m of the total 6.72 m length of new steel sheet pile wall at Sta. 0+061.2. The 5.2 m length is equivalent to the existing west wall. This is assessed as a benefit assessment in the amount of $5,726. The additional 1.52 m length of new wall ($3,329) is assessed as an Outlet Liability against all upstream lands and roads.
The property is not assessed any portion of the cost to remove and dispose of the boathouse.
The property is assessed 30% of all costs related to the filling of the boat well and the installation of the new pipe through this fill area to the Ruscom River. This portion of cost ($3,708) is levied as a benefit assessment against the property. The remaining 70% is assessed as an outlet liability against all upstream lands and roads.
The total benefit assessment levied against this property is $5,726 + $3,708 = $9,434.
The Engineer testified that an allowance of $100 was provided to the Jubinville property as compensation for the loss of one silver maple tree. An arborist had determined in the Tree Assessment that this tree was in poor condition and of little value. The value of the allowance was determined to be the relative cost to install a new tree somewhere else on the property.
The Engineer testified that an allowance of $1,000 was provided to the Jubinville property as compensation for the loss of the boathouse in its current use as a storage shed. The value of the allowance was determined to be the cost to purchase a shed of similar area to that portion of the existing structure that is being used for storage.
The Engineer testified that no allowance was provided for the loss of use of the boat well as it has not been used as a boat well for many years and cannot currently be used as such.
Dennis and Rosemary Jubinville
Mr. Jubinville confirmed that the process and discussions with the Engineer, as described by the Engineer in his evidence, was accurate. He confirmed that he did agree to the works recommended in the Report. However, he testified that he should not be assessed any benefit assessment. He confirmed his acceptance of the outlet liability charge but maintained that his benefit assessment should be reduced to $0.
Mr. Jubinville acknowledged that the boat well was dry and has been unusable for approximately eight or nine years. He confirmed that he has never undertaken any effort to deepen or modify the boat well to make it useable.
He is of the view that the boathouse is in better condition than expressed by the Engineer. He confirmed that he had not obtained any independent opinion or assessment of the condition or relative value of the boathouse. He acknowledged that the allowance of $1,000 for the loss of the boathouse was acceptable but only if he was not assessed any benefit charges. He offered no opinion or complaint regarding the allowance for the loss of the silver maple tree.
Mr. Jubinville testified that the drain has been collapsed for some time within his property and although it has been reported to the County of Essex, no effort to repair the damage has been made.
He was aware of the existence of the drain through his property at the time of purchase and acknowledges the existence of a drainage easement within which the new drain is proposed to be constructed.
Mr. Jubinville disagreed with the opinion expressed by the Engineer which suggests that the removal of the boathouse, filling of the boat well, and construction of a new sheet pile wall at the Ruscom River will result in an improvement to the property and hence a benefit.
Ms. Jill Fiorito, Drainage Superintendent
Ms. Fiorito testified that she met with Mr. & Mrs. Jubinville during the report process to review their concerns and address their expectations. She understood their position to be that the County of Essex should be made to bear all costs. She testified that she advised the Jubinvilles to get an appraisal of their boathouse, and provided whatever assistance and guidance practical to them.
Findings
Appeal under Section 48(1)(a):
The Appellants claim that the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof. There is little doubt that the new drainage works recommended in this Report are necessary and will provide an essential service to agricultural lands, residential lands and County Road 31. The existing drainage system is inadequate, is in a state of failure and has no legal status under which it can be maintained by the Municipality. No evidence was brought to suggest that the project could be modified to reduce its cost or alter its scope. Individual property owners may have issues with their specific assessments. However, the Tribunal is satisfied that the drainage works, as described in the Report, is required and will provide service commensurate with its cost.
Appeal under Section 48(1)(c):
The Appellants claim that the allowance provided in this Report to this property is inadequate. One component of the damage allowance was a $100 allowance for the loss of a silver maple tree. The Engineer testified that the allowance was based on a replacement cost for a new tree. No evidence was offered by the appellant to counter this evaluation. The Tribunal accepts the value of the $100 allowance offered in this instance.
The second component of the damage allowance was a $1,000 allowance for the loss of the use of the boathouse. The Engineer testified that this value was derived from the cost to construct a shed of similar size to the portion of the boathouse that is currently being used for storage. The Appellants testified that they would have accepted the value of the allowance had the assessment been eliminated. Neither the Engineer nor the Appellants offered any additional supporting evidence related to a third party evaluation of this structure. Although both parties disagree on the general condition of the boathouse, both agree that it has not been used for its intended purpose for many years and is only partially useful for storage in its current state. The Tribunal finds no compelling argument to adjust the value of this allowance.
Appeal under Section 54:
The final assessment, as revised by the Court of Revision, against Roll No. 610-04300 is shown to levy a benefit assessment of $9,434 and an outlet liability of $335. The Appellants had no issue with the value of the outlet liability assessment. The Tribunal agrees that the Appellants should be assessed $335 for outlet liability as the Engineer’s method of calculating this assessment was technically sound, compliant with the Act and appropriate considering the size and location of this property.
The Appellants requested that the benefit assessment levied against this property be reduced to $0. Based on the evidence before it, the Tribunal disagrees. There is an existing drainage system within this property that is inadequate in capacity and has experienced structural failure. The Municipality has no legal means to access the property, undertake the repairs and recover the cost. The Appellants appear to have no leverage against the County of Essex to compel the repairs. The implementation of this Report provides a clear and concise methodology under the Drainage Act to construct and maintain this drainage works under a bylaw and equitably distribute the cost of the construction and maintenance. The reconstruction of this drain as a Municipal Drain under the Act across this property is definitely a benefit to this property as a whole. Further, the Engineer has given evidence that specific components of the work will provide a benefit to this property.
The Engineer gave detailed testimony related to the cost and assessment of cost to fill in the boat well and install a new drain through the filled area. The total cost of this component was estimated to be $12,374. There is no doubt that this work will address the failed sheet pile walls around the boat well, thus eliminating the cost of maintaining or replacing them and the filling will increase the useable size of the lot. The new drain will effectively convey the flow from the upstream lands through the property to a sufficient legal outlet. The Tribunal is satisfied that this provides a direct benefit to this property as defined in the Act.
The Engineer acknowledged the relative responsibilities of the upstream lands in developing the assessment for this component of cost and assessed $3,708 (30% of $12,374) as benefit and $8,666 (70% of $12,374) as outlet liability. The Tribunal accepts this relative weighting of cost as fair and equitable.
The Engineer gave detailed testimony related to the cost and assessment of cost to construct a new steel sheet pile wall at the outlet of the drain at the Ruscom River. However, unlike the above-noted assessment, this time he apportioned 50% ($5,726) of the cost of this component ($11,452) assessed as a benefit to the Appellants. The testimony from the Engineer as to why the distribution of this cost should be different from the distribution of the cost of infilling the boat well was not convincing. The Tribunal views this component of work as integral to the filling of the boat well. The same assessment rationale that applies to the filling of the boat well should be applied to the construction of the new steel sheet pile wall.
Therefore, the value of this component assigned to benefit would be $3,436 (30% of $11,452). The value of this component assigned to outlet liability would be $8,016 (70% of $11,452). The total benefit assessment against Roll No. 610-04300 would be $7,144 ($3,708, filling and pipe + $3,436, steel sheet pile wall).
Procedural Issue:
The Corporation of the Town of Lakeshore provisionally adopted the Report on the Ruscom River Outlet No. 3 on March 4, 2014. The Engineer submitted a Revised Construction Schedule of Assessment for consideration at the Court of Revision along with a Revised Drawing Sheet No. 1 of 4 stamped and dated March 18, 2014. The Court of Revision adopted the Revised Construction Schedule of Assessment at a meeting on April 7, 2014. The Court of Revision has no authority to adopt the Revised Drawing Sheet as part of the Report. The Engineer has asked that this sheet be made part of the Report. The Tribunal agrees.
ORDER OF THE TRIBUNAL
The Tribunal orders as follows:
That the appeals by Dennis and Rosemary Jubinville under Section 48(1) (a) and 48(1) (c) of the Drainage Act are granted in part.
The total benefit assessment to be levied against Roll No. 610-04300 shall be reduced from $9,434 to $7,144. The $2,290 difference between these values shall be added to the total assessed value of outlet liability as shown in the last revised Schedule of Assessment, and levied pro-rata on all properties in the watershed.
Revised Drawing Sheet No. 1 of 4 stamped and dated March 18, 2014 as filed with the Municipality shall become part of the report and replace Drawing Sheet No. 1 in the report dated January 17, 2014.
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 their own costs.
Dated at Tecumseh, Ontario this 29th day of July, 2014.