Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Fox-Jakait Drain, Part of Lots 12 – 13, Concessions 2 & 3 Geographic Township of Gosfield South Township of Kingsville

Fox-Jakait Drain, Part of Lots 12 – 13, Concessions 2 & 3 (RE) 2015ONAFRAAT14

STATUTE:

Drainage Act

HEARING:

April 30, 2015

DATE OF DECISION:

June 11, 2015

2015-14

NEUTRAL CITATION:

2015 ONAFRAAT 14

FOX JAKAIT DRAIN Part of lots 12 – 13, Concessions 2 & 3 Geographic Township of Gosfield South Township of Kingsville

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

AND IN THE MATTER OF: Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Jaqueline Pickard, Jakait Warehousing Inc., of Ruthven, Ontario under section 54(1) of the Drainage Act from the decision of the Court of Revision pertaining to the Fox-Jakait Drain.

AND IN THE MATTER OF: An Interim Order of the Tribunal dated May 12, 2015 requesting the Engineer to provide additional information pertaining to the costs associated with the road crossings for the Fox-Jakait Drain.

Before: Paula Lombardi, Vice-Chair; Ed Dries, Member; Tim Mousseau, Member

Appearances: Elizabeth Graper, Counsel for the Appellant Keith Pickard, Witness for the Appellant Christine Riley, Counsel for the Municipality Gerard Rood, P. Eng., Engineer who prepared the Report Edward Araujo, Assessed Landowner

DECISION OF THE TRIBUNAL

Background

The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held this hearing in the Town of Kingsville on April 30, 2015. The Engineer’s report dated July 25, 2014 for the Fox-Jakait Drain (“Report”) was prepared by Rood Engineering Inc., and submitted by Mr. Gerard Rood, P.Eng. (“Engineer”). The appeal to the Tribunal was filed on behalf of Jakait Warehousing Inc. (“Appellant”).

Scott Brown, Clerk of the Town of Kingsville, performed the duties of 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 Municipality filed an Affidavit of Service, dated April 17, 2015, as proof that all parties had been served with the notice of hearing.

Mr. Edward Araujo, an assessed landowner, was made a party to the hearing.

Overview

The Report dated July 25, 2014 was prepared by Rood Engineering Inc., Mr. Gerard Rood, P. Eng., a professional engineer with that firm, was designated under Section 8(2) of the Drainage Act (“Act”) with overall responsibilities for the Report. On October 15, 2014 the Engineer submitted an Addendum to the Report incorporating minor adjustments to the Schedule of Assessment to reflect additional information and investigations of the land owned by Mr. Edward and Ms. Maria Araujo and to resolve a discrepancy in the assessment of the Jakait Enterprises Inc., property. This revised Schedule of Assessment was included in the report at the meeting to re-consider the report on November 24, 2014.

The Fox-Jakait Drain will serve the properties fronting along Road 3 East, in Part of Lots 12 and 13, Concession 2 and 3, situated in the Geographic Township of Gosfield South. The Fox-Jakait Drain is designed as an open drain with a number of catch basin inlets and connections from the abutting lots and roadway, along with access bridges.

The petition for the Fox-Jakait Drain was received from the owners of the Jakait Warehousing Inc., Jakait Enterprises Inc. (“Jakait Parcels”) and Fox Ready-Mix parcels who represent 66% of the owners requiring drainage in the area. Both the Jakait and Fox Ready-Mix parcels are being considered for development and require a suitable outlet for their storm drainage that will be controlled to predevelopment outlet rates. The Engineer noted that the Town has had problems with water ponding on the shoulder and boulevard of Road 3 East because the existing ditch is in a state of disrepair and consists of numerous access culverts that are not properly functioning. Prior to any development of the Fox Ready-Mix and Jakait Parcels stormwater management controls will be required.

The Fox-Jakait Drain will convey water flows from lands already assessed as part of the Temple Drain which is situated at the intersection of Road 3 East and County Road 31 (Albuna Townline Road). The Temple Drain is a covered drain that extends northerly along the east side of County Road 31 from the intersection of Road 3 East and outlets to the Sturgeon Creek Drain at the north Side of King’s Highway No. 3. The area draining to the Temple drain extends easterly from Spinks Drive.

The Fox Ready-Mix and Jakait Parcels intend to drain their properties into the Fox-Jakait Drain using stormwater management controls that will limit the flow rates to the drain. Because of the proposed development of the properties in the area the Engineer recommended that the watershed boundary for the Fox-Jakait Drain be adjusted to reflect the area that is draining through the proposed new drain to the Temple Drain. The Engineer concluded that there are no new areas being developed that will be brought into the Fox-Jakait Drain watershed with the exception of the Fox Ready-Mix and Jakait Parcels. As a result of the stormwater management controls being proposed for these properties the Engineer concluded that there will be no significant change, or adverse impact to the downstream drains.

The March 26, 2010 engineering report for the Temple Drain was prepared by Stantec Consulting Inc., and consisted of engineering works to accommodate the construction of the roundabout and included a catch basin at the northwest corner that is connected to the Temple Drain. The Temple Drain report was used by the Engineer in establishing the watershed limits for the Fox-Jakait Drain.

The Spinks Subdivision Drain report that provides drainage for the cul-de-sac located at Setterington Drive and is situated parallel and immediately north of Road 3 East was also used by the Engineer to establish the watershed boundary along the northern side of the Fox-Jakait Drain.

The Engineer conducted an on-site meeting, undertook field investigations, completed a survey of the area, and engaged in discussions with Town staff and affected landowners alike. The Report recommends that the existing road ditch be restored to its original parameters and that, new access bridges (pipe culverts) be installed as part of the Fox-Jakait Drain. The Engineer concluded that access bridges with precast concrete block endwalls and a 9.16 metre turning radius are preferred to minimize disturbance to the drain bank and reduce the risk of subsequent maintenance problems. To facilitate future maintenance and to reduce flow rates downstream, a uniform pipe size of 375mm diameter will be used. The areas situated on the south side of Road 3 East currently experiencing ponding problems are to be connected to the proposed new drain with a catch basin inlet and pipe across the roadway.

The Engineer prepared a preliminary design, cost estimates and assessments and held meetings on-site to seek input from the landowners in the drainage area. The costs of the proposed work associated with the Fox-Jakait Drain were assessed in the Schedule of Assessment dated October 15, 2014. The estimate of the total cost of the proposed Fox-Jakait Drain including all expenses is Three Hundred and Forty Thousand Five Hundred dollars ($340,500). The maintenance sharing for the access bridges is set out in detail in Table A of the Report and the maintenance work for the open or covered components of the drain are to be assessed on a pro-rata basis as set out in the Schedule of Assessment.

The benefit assessments are distributed to those properties either situated along or, in close proximity to, the drain. The outlet assessments are distributed to all of the properties located within the watershed area of the Fox-Jakait Drain. Since Road 3 East and Spinks Drive are located within the drainage area, the Schedule of Assessment allocates to the Town a portion of the road costs, being approximately 32% of the total costs. In the Schedule of Assessment, the Appellant, Jakait Warehousing Inc., were initially assessed approximately 19.1% percent of the overall project cost. In accordance with section 31 of the Act, allowances are to be paid to the lands and roads adjacent to the existing drain.

The Appellant was initially assessed a total amount of $65,011.00 ($11,251.00 for benefit and $53,760 for outlet), as in the Schedule of Assessment.

Issue

Should the assessment as set out in the Engineer’s Report as modified by the Schedule of Assessment of October 15, 2014 be amended?

Evidence

Mr. Rood, P. Eng., the Engineer who prepared the Report

Mr. Rood provided the Tribunal with an overview of the Report including an explanation as to how the assessments were calculated. A spreadsheet showing the detailed calculations of the assessments was submitted as Exhibit 5 and dated October 15, 2014.

The Engineer testified that the Report was initiated by a petition in accordance with the Act by the owners of the Fox Ready-Mix and Jakait Parcels whose properties represent sixty-six percent (66%) of the area requiring drainage.

According to the Engineer an open drain was preferred as the existing open ditch along the road could be made into a municipal ditch that will also provide drainage from the south side of the road to control runoff and convey water to the Fox-Jakait Drain. The Engineer relied upon a topographic survey to establish the watershed boundary.

The Engineer testified that he took into consideration the reports of the existing drains to determine the appropriate benefits and assessments. The assessments initially shown for the Araujo property identified 3.5 acres (1.416 ha) as requiring drainage. A portion of which were included in a prior assessment for the Temple Drain. The Araujo property was assessed a benefit rate based on half of the frontage of the south perimeter abutting the proposed municipal outlet based on 3.5 acres and was assessed for Outlet Liability using a runoff co-efficient or factor of 0.10 for the agricultural lands. In October 2015 the assessment for the Araujo property was revised to acknowledge the water controls existing on the property and the area of the Araujo property draining into the Temple Drain. The portion of the Arajuo lands assessed as part of the Fox-Jakait Drain was reduced to 0.9 acres (0.364 ha) in Exhibit 5.

The Appellant’s property is 5.94 acres (2.404 ha) in area and is subject to a development agreement with the Town that includes a requirement for stormwater management measures. The Engineer indicated that the Appellant’s property was assessed for Outlet Liability using a runoff factor of 0.50.

The Schedule of Assessment was modified in October 2014 to take into consideration meetings with the Town and the Appellant. The Engineer indicated that there was initially some misunderstanding regarding one of the Jakait properties, Jakait Enterprises Inc., (Roll 340-00207) as this property was not being considered for development and as a result the watershed boundary required adjustment. The Engineer corrected the watershed boundary and the assessment for the Jakait Enterprises Inc., parcel resulting in a reduction of Six Thousand and Six Hundred and Seventy-Three dollars ($6,673) in the assessment. The Jakait Enterprises Inc., parcel was updated to assess only the southerly half of the property similar to the neighouring properties.

The Engineer on cross-examination acknowledged that the Appellant’s property (Roll 340-00203) is subject to a development agreement and a stormwater management plan that was submitted to the Town showing the water flows being collected and discharged to an outlet of the Fox-Jakait Drain.

The Engineer in response to questions indicated that the northerly portion of this particular property of the Appellant is still assessed in the Spinks Subdivision Drain. However, the Engineer acknowledged that at the last meeting of Town Council it was requested that the Appellant’s property be removed from the Spinks Drain. Town Council is appropriately waiting for this decision of the Tribunal on the Fox-Jakait Drain prior to taking any steps to remove the Appellant’s property from the Spinks Drain.

The Tribunal issued an Interim Order on May 12, 2015 to request that the Engineer provide the Tribunal with an updated, electronic version of Exhibit 5, being the Schedule of Assessment, outlining the allocation of the costs associated with the road crossings. This matter arises as a result of Mr. Rood’s response to questions from the Tribunal indicating that discretion was applied in calculating the allocation of the road crossing costs.

The Engineer also indicated in response to questions from the Tribunal that the runoff factor of 0.50 applied to the Appellant’s property was the same as what was used for similar lands in the watershed despite the Appellant’s property being subject to a stormwater management plan that controls water on the property and reduces the rate of runoff to the Fox-Jakait Drain.

Mr. Edward Araujo

Mr. Edward Araujo provided a statement to clarify his opinion on the proposed drainage work. Mr. Araujo indicated that his property does not have any issues with respect to water from County Road 31 and that the ditch along his property was recently excavated and can handle the existing volume. It is Mr. Araujo’s opinion that he should not be forced to endure extra costs as a result of development occurring in the area and that these costs should be imposed on the individuals who are developing their property. Mr. Araujo requested that there be no increase in the amount of the assessment applied to his property.

The Appellant, Jakait Warehousing Inc.

Mr. Pickard, Chief Executive Officer of Jakait Warehousing Inc., testified for the Appellant. Mr. Pickard indicated that he has worked with the Town on numerous issues relating to the development of the Jakait Parcels situated along Road 3 East. The development of the Appellant’s property has occurred over the past seven years with Phase 1 starting in 2008 and completed in 2009; Phase 2 being completed in 2010 and Phases 3 and 4 being completed in the summer of 2011. In or around December 22, 2011 a site plan agreement for the development of the property was entered into by the Appellant with the Town. The Appellant confirmed that the property has had drainage issues since approximately 1990.

The Appellant discussed the drainage issues associated with the surrounding properties and indicated that the swales are not cleaned and the culverts under the driveways to the various properties are obstructed resulting in ponding in front of the Appellant’s property.

The Appellant indicated that they owned the property prior to any discussions arising about the proposed Fox-Jakait Drain. The Appellant confirmed that a stormwater management plan was submitted for the Jakait Warehousing property.

The intention of the Appellant is to construct storm drainage in accordance with the stormwater management plan submitted to the Town once the Tribunal has released this decision on the Fox-Jakait Drain. The Appellant acknowledged that the entire property discharges to Road 3 East.

The stormwater management plan dated December 2, 2011 and submitted to the Town for the Appellant’s property describes the general site conditions. A roadside swale is identified as existing to the south of the Appellant’s Property along Road 3 East. According to the stormwater management plan the swale is not sufficient for the run-off from the property and proposes that a new outlet be designed which will be provided by the Fox-Jakait Drain. The Appellant’s property is identified as being mainly gravel and buildings. The stormwater management plan concluded that the pre-development runoff coefficient was assumed to be an entirely grassed area of 0.25 since a new municipal outlet is to be provided; the runoff coefficient of 0.25 will minimize the release of the water to ensure that the Fox-Jakait Drain is not overburdened.

Findings

Engineer’s Assessment of Roads

The Tribunal finds that the Engineer’s Schedule of Assessment, submitted as Exhibit 5, and the information provided in response to the Tribunal’s Interim Order, fails to properly allocate costs associated with the road crossings as required by the Act. This matter arises as a result of Mr. Rood’s response to questions from the Tribunal indicating that discretion was applied in calculating the allocation of the road crossing costs. The Tribunal notes that section 26 of the Drainage Act (“Act”) states:

In addition to all other sums lawfully assessed against the property of a public utility or road authority under this Act, and despite the fact that the public utility or road authority is not otherwise assessable under this Act, the public utility or road authority shall be assessed for and shall pay all the increase of cost of such drainage works caused by the existence of the works of the public utility or road authority.

[emphasis added]

There is no discretion provided in the Act with respect to the application of section 26. The use of the word “shall” in the Act denotes that it is a mandatory provision that is not subject to discretionary application. It is mandatory that a road authority be assessed and be responsible for any increase in the costs of the drainage works arising as a result of the existence of a road. Upon review of Exhibit 5, and the additional information provided by the Engineer in response to the Tribunal’s Interim Order, it is the Tribunal’s finding that the costs of the Fox-Jakait Drain associated with the road crossings have not been properly allocated to the road authority under the provisions of section 26 of the Act.

The Engineer confirmed to the Tribunal that, in absence of the road, the properties located on the south side of the road would discharge directly into the drain without the need for any of the piped road crossings set out in the Report.

The Tribunal reviewed the additional information provided by the Engineer resulting from the Interim Order and disagrees with the position of the Engineer that a portion of the costs related to the road crossings are not the responsibility of the road. The Tribunal concludes that the use of pipe, granular backfill and asphalt restoration set out in Item 21 of the Report are all directly the result of the existence of Road 3 East. If Road 3 East did not exist, no outlet pipes would be recommended. Therefore, the Tribunal concludes that the full Eighteen Thousand Dollars ($18,000) allocated for Item 21 should be included in the costs arising under section 26.

The Tribunal acknowledges that some of the catch basins identified in Item 22 are situated on the north side of the Road 3 East and are not related directly to the existence of the road. The catch basins situated on the south side of the road are as a direct result of the existence of Road 3 East. The Engineer stated that “The alternative to using catch basins on the south side would be the construction of an open and partially covered drain, similar to the north side, at a much more significant cost.” The Tribunal concludes that if there were no road there would be no requirement for a parallel drainage system to the south of the existing drain as the properties would be located adjacent, and have the ability to directly discharge to the drain. Because of this there would be no additional costs incurred. However, the Tribunal is willing to accept the Engineer’s rationale for the allocation of the costs identified as Item 22 as set out in the Engineer’s submissions dated May 12, 2015.

All of the road restoration costs in Item 23 of $8,519 are directly related to the road and must be allocated as such under the provisions of section 26 of the Act. The Tribunal concludes that the allocation of the overhead costs associated with the existence of the road to the Town should be as follows: $18,000 (100% of Item 21) plus $8,519 (100% of Item 23) amounting to a total of Twenty-Six Thousand Five Hundred and Nineteen dollars ($26,519). The amount is then multiplied by 1.22793 to reflect the overhead costs as identified in the report which amounts to a special benefit allocated to the roads under the provisions of section 26 of Thirty-Two Thousand and Five Hundred and Sixty-Three dollars ($32,563) representing an increase of Six Thousand and Four Hundred and Eighty-Three dollars ($6,483) from the assessment set out in Exhibit 5.

The Tribunal accepts the basis upon which the Engineer levied the special benefit. In determining the special benefit the Engineer took the total cost of the drainage works, subtracted the special benefit and levied the remaining pro-rata on the assessment schedule. This method ensured that the 40% Benefit/ 60% Outlet split remained the same.

The Tribunal’s further adjustment to Exhibit 5 results in a net cost to be levied against the watershed of Three Hundred and Seven Thousand and Nine Hundred and Thirty-Seven dollars ($307,937). Applying the same Benefit/Outlet split of 40% / 60%; the share allocated to the benefit is amended to One Hundred and Twenty-Three Thousand and One Hundred and Seventy-Five dollars ($123,175) from One Hundred and Thirty-Six Thousand and Two Hundred dollars ($136,200) and the balance of One Hundred and Eighty-Four and Seven Hundred and Sixty-Two dollars ($184,762) is allocated to Outlet representing a change of Nineteen Thousand Five Hundred and Thirty-Eight dollars ($19,538).

Appellant’s Assessment

The runoff co-efficient applied to the Appellant’s property is identified in Exhibit 5 as 0.50. The conditions of the development, the existence of a development agreement for the Appellant’s property and the stormwater management report concludes that the discharge from the Appellant’s property will be limited to a peak runoff generated from a co-efficient of 0.25. All of the surrounding commercial/industrial properties shown on the Schedule of Assessment are all assessed on the basis of a co-efficient of 0.50. However, the Appellant’s property is the only property in the area that is required to control the runoff as a result of the existing development agreements to a co-efficient of 0.25 being a predevelopment condition.

While the Engineer made the argument to support applying the co-efficient of 0.50 to the Appellant’s property by focusing on the volume of flow from the Appellant’s property only, the Tribunal notes that the Act refers to both the volume and the rate of water caused to flow. With the development of the Jakait Property, the Appellant will be required to construct on-site storage or retention facilities on the property at their own cost and expense to meet the stormwater management plan’s criteria of a runoff co-efficient of 0.25.

In the Tribunal’s opinion it is neither fair nor is it reasonable to assess the Appellant’s property in exactly the same manner as the other commercial/industrial properties in the area connecting to the drain that are not required to implement any drainage controls. To reflect the drainage controls required on the Appellant’s property the equivalent acres should be amended to 1.49; being 5.94 acres multiplied by the runoff co-efficient of 0.25. The revised value of 1.49 would result in a reduction of the Outlet Assessment against the Appellant of approximately 50%; being approximately Twenty-Four Thousand and Eight Hundred Dollars ($24,800).

The Tribunal finds that the assessment against the Appellant failed to take into account the runoff co-efficient of 0.25 that is applied through the existing development agreements to the Appellant’s property and amends the Schedule of Assessment to reflect this runoff co-efficient.

Order of the Tribunal

The Tribunal therefore orders that:

1. The assessments to the properties included in the Fox-Jakait Drain shall be revised as indicated in the attached Schedule of Assessment as revised by the Tribunal;
2. The non-administrative costs of the Town incurred with respect to this appeal includes: the Engineer’s fees and expenses for preparing the report; and, the Engineer’s fees and expenses for attending and participating in this hearing and shall form part of the cost of the drainage works; and,
3. There shall be no other Order as to costs and all parties shall be responsible for their own costs.

Dated at London, Ontario this 11th day of June, 2015