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: AFRAAT@ontario.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Zavitz Municipal Drain, Sherkston North Branch Drain, East & West Trail Branch Drains (RE) [Interim Decision #2] Town of Fort Erie and City of Port Colborne

Zavitz Municipal Drain, Sherkston North Branch Drain, East & West Trail Branch Drains (RE) [Interim Decision #2] Town of Fort Erie and City of Port Colborne 2016ONAFRAAT25

STATUTE:

Drainage Act

HEARING:

April 7, 2016

DATE OF DECISION:

April 14, 2016

008Zavitz14

NEUTRAL CITATION:

2016ONAFRAAT25

ZAVITZ Municipal Drain, Sherkston North Branch Drain, East & West Trail Branch Drains Town of Fort Erie and City of Port Colborne

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 Gary R. Clee of Port Colborne, Ontario under section 54(1) of the Drainage Act from the decision of the Court of Revision; by the City of Port Colborne from the decision of the Court of Revision and a section 72(1) request for review of the Engineer’s Account; and by Gary R. Clee, City of Port Colborne, Tim Priebe and Dianna Hilmayer from the Revised Schedule of Assessments pertaining to the Zavitz Municipal Drain, Sherkston North Branch Drain, East & West Trail Branch Drains.

AND IN THE MATTER OF: An Order of the Agriculture, Food and Rural Affairs Appeal Tribunal from the Interim Decision of September 28, 2015.

Before:

Paula Lombardi, Vice-Chair; Andrew McBride, Member; Richard Smelski, Member

Appearances:

Gary Clee, Appellant

Henri Bennemeer, Drainage Superintendent, City of Port Colborne, Appellant

Tim Priebe, Appellant

Paul Marsh, Engineer for AMEC Foster Wheeler Environment & Infrastructure

Dave Maiden, Drainage Superintendent, Town of Fort Erie, Respondent

INTERIM DECISION #2 OF THE TRIBUNAL

Background

The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held hearings in the Town of Fort Erie on August 5, 2015 and on April 7, 2016. The initial engineer’s report, dated July 29, 2014 for the Zavitz Municipal Drain, Sherkston North Branch Drain, East & West Trail Branch Drains was prepared by AMEC Environment & Infrastructure and submitted by Mr. Paul D. Smeltzer, P.Eng. The Tribunal issued an Interim Decision of September 28, 2015 (“Interim Decision #1”) arising from the hearing held on August 5, 2016 and, as a result, a revised Engineer’s Report, dated February 2016 (“Report” or “Engineer’s Report”), was prepared by AMEC Foster Wheeler Environment & Infrastructure and was submitted by Mr. Paul Marsh, P. Eng., (“Engineer”).

Further appeals to the Tribunal arising from the revised assessments were filed by Mr. Gary R. Clee, Mr. Tim Priebe and Ms. Dianna Hilmayer, and the City of Port Colborne (collectively the “Appellants”).

Margarete Taddeo, Clerk of the Town of Fort Erie, 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 February 11, 2016, as proof that all parties had been served with the notice of hearing.

Mr. Mike Woronchak, an assessed landowner was made a party to the appeal filed and appeared at the first hearing in August 2015.

Overview

As noted in the Tribunal’s Interim Decision #1, there is considerable history relating to the preparation of the Engineer’s Report. AMEC was not the first engineer involved in this project. In 2004 and 2006, the need for improvements to the Zavitz Drain was recognized by Fort Erie and Port Colborne with the appointment of Wiebe Engineering to prepare an Engineer’s Report. In November 2004, Wiebe Engineering Group Inc. (“Wiebe Engineering”) was appointed by Fort Erie to prepare an engineer’s report for the Baer, Schooley, Zavitz and Outlet Drains in accordance with the provisions of the Drainage Act (“Act”). However, both Port Colborne and Fort Erie have rescinded the by-laws appointing Wiebe Engineering. Wiebe Engineering was unable to continue to provide engineering services and was replaced as the engineer on record by AMEC.

Fort Erie is considered the initiating municipality under the provisions of the Act. The purpose of the Report is to determine whether drainage works are required, to quantify the works through an engineering investigation and to assess the cost of the drainage works in accordance with the provisions of the Act.

Much of the detail relating to the Engineer’s Report is set out in the Tribunal’s Interim Decision #1. The Engineer reviewed the existing Zavitz Drain and proposed the following works:

• cleaning and grubbing along the 2,901 metres of the existing drain plus the clearing of a work area 10 metres wide to permit drain access within Fort Erie and Port Colborne;

• Cleaning of the municipal culverts at Holloway Bay Road and Pleasant Beach Road;

• Replacement of the municipal culvert at Mathews Road;

• Replacement of private culverts on the properties identified as Roll No. 20018336000000 (Clark); Roll No. 2711040000105300 (Damude); and, Roll No. 271104000138400 (Clee); and,

• Removal of the private culvert on the property identified as Roll No. 20018337010000 (Beach).

Port Colborne Engineering & Operations Report #2011-20 (April 11, 2011) recommended to City Council that a petition for a Branch Drain be investigated to service the lands south of the Friendship Trail within the watershed of the Zavitz Drain. On May 12, 2011, the City of Port Colborne (“Port Colborne”) endorsed the motion put forward by staff and approved the appointment of the Engineer in accordance with Sections 4 and 78 of the Act to prepare an Engineer’s Report for that portion of Zavitz Drain situated within the City of Port Colborne as well as to provide the designs and assessments for a new Sherkston North Branch Drain (“North Branch”) and two new drains to be known as the East and West Trail Branch Drains.

The Engineer reviewed the options for the Branch Drains, as provided by the City of Port Colborne, and revised designs were approved. The North Branch Drain and East and West Trail Branch Drains have been designed to improve drainage in the areas of Sherkston Road, Pleasant Beach Road, Friendship Trail and the adjacent residential lands.

The revised Report indicates that the North Branch Drain will commence on the north side of Sherkston Road and extend northerly, on the former Philip property, now the Priebe/Hilmayer property, to the Friendship Trail. The North Branch Drain will be conveyed under the Friendship Trail, via a new 900 mm HDPE culvert, and then extend northerly through the Cosby and Lochhead properties to intersect the existing Zavitz Drain.

The East and West Trail Branch Drains are proposed as open drains to be constructed in the existing south ditch of the Friendship Trail, which is a paved community walking/biking trail located on a former railway property, now owned by the City of Port Colborne. The East Branch is proposed to be 312 metres in length and will convey flows westerly to its convergence with the North Branch. The West Branch is proposed to be 480 metres in length, extending from west of Pleasant Beach Road, including the resetting of the culvert under Pleasant Beach Road, and will convey flows easterly to its connection with the North Branch.

The Branch Drains will convey drainage from the properties bounded by the Friendship Trail to the north, the Hayter (Roll No. 271104000119700) / Vorstenbosh (Roll no. 271104000119800) property line to the west, Sherkston Road to the south, Holloway Bay Road and a portion of the Eberly Trucking property to the east, as well as a small portion of the Cosby and Lochhead properties north of Friendship Trail and south of the main Zavitz Drain.

The total area drained by the Zavitz Drain is approximately 280 hectares, with approximately 109 hectares being in the upstream part of the watershed in Port Colborne, and 171 hectares being in the downstream part of the watershed in Fort Erie. The area within the overall watershed that is to be drained by the North Branch Drain and the East and West Branch Drains, situated in the City of Port Colborne, is approximately 15.49 hectares. The Zavitz Drain outlets to the Outlet Drain at Port Abino Road, where the Outlet Drain travels north to Beaver Creek and then into the Niagara River.

The Engineer was provided with a considerable amount of background information on the Zavitz Drain by both Fort Erie and Port Colborne. The information included a chronology dating back to 1890, numerous prior engineers’ reports, petitions from property owners regarding drainage issues, by-laws developed to address the drainage issues, and records of the Courts of Revision.

Wiebe completed several meetings and discussions with landowners in the drainage area and submitted a draft Final Engineer’s Report to Fort Erie on July 21, 2006. A copy of this draft report was provided to AMEC as background information.

AMEC held numerous meetings with property owners in the drainage area but also took into consideration the comments received by Wiebe during its consultation period. The Engineer’s Report confirms that the design of the Zavitz Drain was undertaken based on field information obtained by Wiebe, as confirmed by AMEC in the fall of 2010 and the spring of 2011.

Issues

1. Should the assessments as set out in the Engineer’s Report be amended?

2. Are the engineering fees to prepare the report and the allocation of those fees between Fort Erie and Port Colborne reasonable in the circumstances?

Evidence

Mr. Paul Marsh, P. Eng., on behalf of AMEC Foster Wheeler Environment & Infrastructure

As this was the second hearing relating to this matter, the Tribunal asked the Engineer to review the 11 Orders from the Tribunal’s Interim Decision #1 and outline how they have been complied with or resolved.

Mr. Marsh was unable to discuss many of the issues as it appeared that he did not have a fulsome background of the project and was unfamiliar with the Appellants properties. Mr. Marsh agreed to answer questions raised by the Appellants and provided solutions as to how they could be effectively resolved. The Tribunal found Mr. Marsh to be cooperative, eager to resolve the outstanding issues, and willing to meet a tight timeline in an effort to get this matter resolved prior to the summer months.

Mr. Gary R. Clee, Appellant

At the August 2015 hearing, Mr. Clee expressed a concern that the assessment applied to his property was not equitable as compared to other properties. Mr. Clee provided the Tribunal with an appeal packaged that included numerous photographs and maps. Mr. Clee confirmed that the property is not cultivated and is an overgrown, forested area. Mr. Clee’s concern was that the outlet assessment applied by AMEC did not accurately reflect the use of the land as it is not used for agricultural purposes nor is it developed.

Mr. Marsh confirmed that the assessment schedule had been revised to reflect the naturalized portion of Mr. Clee’s property and Mr. Clee seemed satisfied with this revision.

At the April 7, 2016 hearing, Mr. Clee further advised that he was concerned about the costs associated with the replacement culvert being proposed on his property. Mr. Clee indicated that he now has a used culvert on his property that may meet the design in the Engineer’s Report and, if it can be installed in the Drain in place of the old pipe, it may reduce his assessment. The Engineer agreed to go to Mr. Clee’s property with the Port Colborne Drainage Superintendent to look at the culvert and determine if it can be used as part of the proposed work.

Also on April 7, Mr. Clee again raised an issue with a slight mathematical error in the calculation of the Section 30 allowance. The Engineer agreed to review the calculation and determine whether or not an error occurred.

Mr. Larry Woronchak representing Michael Woronchak, Landowner

Mr. Woronchak appeared again to indicate his concern that while they installed a new culvert in the Drain in the Spring of 2015, AMEC has failed to recognize this culvert as part of the drainage works. This issue is order #3 of the Tribunal’s Interim Decision #1.

The history of the Woronchak issue is that, when the Woronchaks’ reviewed the first Engineer’s Report, they noticed that there was no new culvert proposed to be installed on their property. Since their existing culvert was not usable, the Woronchaks had to go ahead and put in a new culvert this past spring, at their own cost and expense.

At the hearing held in August 2015, it was recommended that AMEC include the removal and reinstallation of this new culvert to the proper depth and slope, as part of the drainage work undertaken under this report, without any extra assessment to the Woronchaks, since they were supplying the pipe. The engineer agreed that this work could be incorporated into the project without any problem, conditional on confirmation that the culvert is large enough. Upon questioning, Mr. Woronchak advised that the culvert was approximately 5 feet (1500 mm) in diameter. The parties agreed that the culvert was likely large enough since it is the same size as the new one being proposed upstream on the Clark property.

Unfortunately, there appears to be some confusion over whether or not Mr. Woronchak’s culvert is in fact the appropriate diameter. The Engineer, Mr. Marsh, acknowledged that he had not been to the Woronchak property and could not confirm whether or not it is appropriately sized. It was agreed that the Engineer and the Drainage Superintendent would attend with the Woronchaks at their property to determine the diameter and condition of the existing culvert and decide whether or not a new culvert is required.

Mr. Woronchak again indicated that they are unable to move some of their farm equipment along Matthews Road since the installation of the new culvert, as a result of the location of the new guard rails. According to Mr. Woronchak the guardrails have been constructed too close together and he is unable to get his equipment between them. It was agreed that the Engineer, the Port Colborne Drainage Superintendent and the Woronchaks would attend at the road crossing to confirm the width of the space between the guardrails. The Drainage Superintendent agreed to do his best to accommodate the movement of the Woronchaks’ farm equipment along Matthews Road.

Tim Priebe, Appellant

Mr. Priebe indicated that he and Ms. Hilmayer are the owners of the property identified in the report as the Philip property. Mr. Priebe’s issue related to Orders 2 and 5 of the Tribunal’s Interim Decision #1.

Mr. Priebe’s first concern was that, while his property is being assigned part of the cost of the new drain, he is not getting any benefit as it will be a solid pipe. Mr. Priebe indicated that his property is not currently being drained properly and there are numerous trees on his property that may be impacted by the proposed drainage works. He feels that the allowances are inadequate.

Mr. Priebe referred the Tribunal to drawing F2 of the Engineer’s Report and indicated some concerns with potential discrepancies between the Engineer’s Report and the drawings.

Mr. Priebe also raised a concern about what will happen with the excavated material from the open part of the Drain on his property. Mr. Bennemeer indicated that it was his understanding that the material would be hauled away but acknowledged that it was not clear in the Engineer’s Report. There was discussion amongst the parties about the pros and cons on using the material on-site as opposed to off-site disposal. Mr. Priebe indicated that he preferred that the excavated material remain on his property.

The last issue raised by Mr. Priebe dealt with the maintenance assessment schedule for the North Branch as, in his opinion; it was neither fair nor reasonable. Mr. Marsh acknowledged that the maintenance schedule was to have been removed from the Engineer’s Response and he will determine whether or not the text needs to be updated to comply with Order #5.

Mr. Henri Bennemeer, Drainage Superintendent, City of Port Colborne, Appellant

Mr. Bennemeer raised a concern with respect to the length of time it has taken the drainage works to move forward and the costs associated with the review of the reports and appearances before the Tribunal. The Tribunal advised Mr. Bennemeer that in its September 28, 2015 Interim Decision #1 it indicated that there shall be no order as to costs and that all parties shall be responsible for their own costs. Mr. Bennemeer was further advised that should the City of Port Colborne be interested in pursuing a costs award it can make submissions to the Tribunal at the next hearing for any and all costs incurred and arising after April 7, 2016.

Mr. Bennemeer also expressed a concern with the $75,000 included in the cost estimate for the new culvert on Matthews Road and how that amount factored into the assessments and/or the engineering fees attributed to the City of Port Colborne. The Tribunal noted that the costs of the Matthews Road culvert have been assessed to the Town of Fort Erie in the amount of $84,951. However, there still remains the issue of this cost being included for the calculation of the engineering fees allowed for AMEC Foster Wheeler in accordance with Order #9 and whether or not it is appropriate for any portion of these fees to be assessed to the City of Port Colborne. The Tribunal finds that it would be prudent before the next hearing for the Engineer to review this matter and determine how much of these costs have been apportioned to the City of Port Colborne.

Mr. Bennemeer also pointed out several errors in the assessment schedule for those properties involved in the Court of Revision process. Mr. Bennemeer agreed to provide the Engineer with a list of the errors he has found in the revised Engineer’s Report including, but not limited to, the assessments, so they can be reconciled prior to the next hearing date.

Findings

The Tribunal makes no findings as this is an interim decision and, as the Engineer’s Report may be subject to additional review and revisions, it would be premature to make any findings on the merits of the assessments as they may change prior to the next hearing date.

Order of the Tribunal

1. Mr. Marsh and Mr. Maiden shall contact Mr. Woronchak and attend at the Mathews Road culvert with him to measure the travel width between the guardrails and try to reach a solution that will allow Mr. Woronchak’s farming equipment to pass over the new culvert to gain access to his fields;

2. Mr. Marsh and Mr. Maiden shall attend at the Woronchak property to determine whether or not a new culvert is required. If a new culvert is required, changes to the assessment schedule will be necessary. However, if the existing culvert is deemed appropriate and can be incorporated into the drain, no further costs shall be assessed to the Woronchak property;

3. Mr. Marsh and Mr. Bennemeer will attend at the Clee property to determine whether the replacement culvert that he has available is of a sufficient size and quality to be incorporated into the drain. The assessment schedule shall be adjusted accordingly if this culvert can be used instead of a new one;

4. Mr. Marsh and Mr. Bennemeer shall review Mr. Clee’s calculation concerning his Section 30 allowance to determine whether or not there is a mathematical error. If necessary, the Engineer’s Report shall be adjusted accordingly;

5. Mr. Marsh shall review the allowances to reflect shifting of the drain onto the Priebe property from the Neal property. If necessary, the allowances shall be adjusted accordingly;

6. Mr. Marsh shall revise the Engineer’s Report to indicate that the excavated material resulting from the construction of the open portion of the North Sherkston Branch shall be left on the Priebe property, if possible;

7. Appendices F1 and G1 shall be deleted from the Engineer’s Report;

8. The future maintenance schedule for the North Branch shall be based only on the outlet assessments contained in the construction assessment schedule as per of Appendix F of the February 2016 Engineer’s Report, at the ratio of approximately 56.3% to the privately‐owned lands and 43.7% to the Port Colborne‐owned lands, as currently shown, and the text in the Report amended accordingly, if necessary;

9. The future maintenance schedule for the West Trail Branch shall be based only on the outlet assessments contained in the construction assessment schedule, as per Appendix G of the February 2016 Engineer’s Report, at the ratio of approximately 47.2% to the privately‐owned lands and 52.8% to the lands owned by Port Colborne, as currently shown, and the text in the Report amended accordingly, if necessary;

10. The future maintenance schedule for the East Trail Branch shall be based only on the outlet assessments contained in the construction assessment schedule, as set out in Appendix G of the February 2016 Engineer’s Report, with 50% assessed to the privately-owned lands and 50% assessed to the Friendship Trail lands owned by Port Colborne, and the text in the Report amended accordingly, if necessary;

11. The allocation of the total engineering fees for the Zavitz Drain shall be proportional to the travel length of the drain situated in each municipality, with approximately thirty-three percent (33%) allocated to Port Colborne and sixty-seven percent (67%) allocated to the Town of Fort Erie, with an allocation schedule of capital costs showing construction, allowances and engineering fees for each municipality;

12. Mr. Marsh shall advise the Tribunal of any impacts associated with the calculation of and allocation of the total engineering fees resulting from the inclusion of the $75,000 cost for the Mathews Road culvert, specifically with respect to item 11 above and the City of Port Colborne;

13. Within a period of one week from the issuance of this Interim Decision #2, Mr. Bennemeer shall provide Mr. Marsh with a comprehensive list of any and all concerns and possible errors in the Engineer’s Report including, but not limited to, errors in the assessment schedules, so they can be reconciled and resolved prior to the issuance of the revised Engineer’s Report;

14. All of the above-noted revisions to the Report shall be made with no additional fees being payable to the Engineer;

15. The non-administrative costs of Fort Erie incurred with respect to these appeals, namely only the Engineer’s fees and expenses for attending and participating in this hearing, shall form part of the cost of the drainage works; and

16. At the next hearing, the parties may speak to and make submissions as to the issue of costs incurred and arising after April 7, 2016.

Dated at London, Ontario this 14th day of April, 2016