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 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Mary MacKenzie Drain

Simcoe, Norfolk County

Mary MacKenzie Drain

Simcoe, Norfolk County 2016ONAFRAAT04

STATUTE:

Drainage Act

HEARING:

November 19, 2015

DATE OF DECISION:

February 1, 2016

2016-04

NEUTRAL CITATION:

2016ONAFRAAT 04

MARY MACKENZIE DRAIN 2015

Norfolk County

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 Bradley and Stephanie Blizman, Peter Bosma, and Jeannie Godlouski all of Simcoe, Ontario under section 54(1) of the Drainage Act from the decision of the Court of Revision on the Mary MacKenzie Drain 2015 in Norfolk County.

Before: Paula Lombardi, Vice-Chair; Edward Dries, Member; Richard Smelski, Member

Appearances:

Bradley and Stephanie Blizman, representing R. J. Boiler Farms Ltd. – Appellants

Peter Bosma – Appellant

Jeannie Godlouski – Appellant

Neal Morris, P. Eng. – K. Smart Associates, Engineer who prepared the Report

Bill Mayes – Drainage Superintendent, Norfolk County

DECISION OF THE TRIBUNAL

This hearing was held in Norfolk County (“Municipality”), in Simcoe, Ontario on November 19, 2015. Bradley and Stephanie Blizman, Peter Bosma, and Jeannie Godlouski appealed to the Tribunal under section 54(1) of the Drainage Act with respect to their assessments in the Engineer’s Report dated March 11, 2015 for the Mary MacKenzie Drain 2015 (“Report”) prepared by K. Smart Associates (“Engineer”) and signed by Neal Morris, P. Eng.

Andrew Grozelle, 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 dated October 1, 2015.

Overview

The Report for the repair, improvement and extension of the Mary MacKenzie Drain (“Drain”) was initiated under Section 4 and Section 78 of the Drainage Act (“Act”).

The work for the repair of the Drain under Section 78 of the Act was initiated by a resolution of Norfolk County Council in 2003. Norfolk County Council subsequently passed a second resolution in 2010 to undertake the work on the Drain pursuant to a petition under Section 4 of the Act that was signed by the Manager of Roads for the Municipality. The purpose of the Report was to improve drainage to the lands currently served by the Drain and McDowell Road East in Lots 11 to 14, Concession 8 and 9, in the geographic Township of Charlottesville in Norfolk County.

The Mary MacKenzie Drain was originally constructed as an open drain based on an engineer’s report prepared under the Act dated May 6, 1957.

The Report recommends improving portions of the original open drain, enclosing a portion of the original open drain along with the construction of a new closed drain along McDowell Road East.

Nine (9) property owners filed appeals to the Court of Revision. These appeals were heard on June 30, 2015 and August 4, 2015. The Court of Revision accepted the two appeals relating to the Schnarr properties and denied all of the other appeals. Three (3) owners appealed the decision of the Court of Revision to the Tribunal. The Appellants’ grounds for the appeals relate to either their assessment or that the area affected on their property as shown in the Report is incorrect.

It was noted that the Court of Revision had approved adjustments to the Benefit assessments levied against Roll No. 20-12700 (Krista, Barbara and Robert Schnarr property) and Roll No. 20-12900 (Robert and Barbara Schnarr property). The Tribunal was asked to confirm these adjustments.

Issues

1. Should the assessment to R.J. Broiler Farms Ltd. (Bradley and Stephanie Blizman) be reduced?

2. Should the assessment to Peter Bosma be reduced?

3. Should the assessment to Jeannie Godlouski be reduced?

Evidence

Bradley Blizman - Appellant

Mr. Blizman is the owner of R. J. Boiler Farms Ltd. Mr. Blizman testified that he purchased the property in May, 2014 and was unaware of what may have been included in the drainage improvements on his property relative to the Drain. Mr. Blizman confirmed that he undertook tile drainage improvements and filling and grading operations on his property in 2015. The tile drainage plan and topographical information provided by Mr. Blizman indicated that the tile improvements were directed to an outlet in the southeast corner of the property into the Marsh Drain not the Mary MacKenzie Drain.

As a result of these tile improvements, Mr. Blizman was of the opinion that the watershed shown in the Report as it pertains to his property was incorrect. Mr. Blizman also was of the opinion that he would not make use of that portion of the Main Drain extending from the north side of MacDowell Road East (Sta. 2+088), northerly to the upstream end of the Drain situated on his property (Sta. 2+195).

Mr. Blizman expressed concern that the Outlet Liability assessment levied against his property was too high. Mr. Blizman provided the Tribunal with alternate calculations for the Outlet Liability charges related to drain length. These calculations were extrapolated from the values assessed against the downstream property as assessed in the Report. Mr. Blizman was of the opinion that the unit cost/metre rates calculated on the downstream lands should also be applied to his lands; this would result in a significant reduction in the Outlet Liability.

Mr. Blizman also indicated that the Benefit assessment levied against his property was too high in the circumstances. Mr. Blizman felt that there is no real need or use of this portion of the Drain in light of the private drainage improvements that he carried out on his property.

Peter Bosma - Appellant

Mr. Bosma confirmed that he has lived on his property for approximately 25 years and has observed the function of the Drain (referenced as Branch A in the Report) over that period of time. Mr. Bosma indicated that over the years he has observed water ponding in the open Drain on his property as well as that of his neighbour to the east (Chechak) for many years. Mr. Bosma expressed support for the drainage works being proposed to improve the drainage on his property. However, Mr. Bosma was concerned that his property was unfairly assessed.

Mr. Bosma pointed out that one component of the Benefit assessment levied against his property was a six thousand dollar ($6,000) charge related to the cost to construct Interval 4 on the main Drain. Interval 4 describes the works to be built along the north side of McDowell Road East from Sta. 1+595 to Sta. 2+195. This work is upstream of the outlet of Branch A which serves his property. Mr. Bosma testified that he has never experienced any flooding from McDowell Road East. Mr. Bosma testified that this portion of the Drain did not provide any benefit to his lands as it did not pass through them nor did it abut his land. Mr. Bosma’s property does not discharge any runoff into that portion of the Drain and, his lands could never physically connect to the Drain.

Mr. Bosma requested that the $6,000 Benefit assessment applied against his property be eliminated. Mr. Bosma’s opinion was that if this portion of the assessment is removed from the distribution of costs related to Interval 4, it must also be removed for the Schedule of Assessment for the Future Maintenance for Interval 4 as shown in Appendix B.

Mr. Bosma testified that his assessment was high because he was being charged part of the cost associated with enclosing the Drain south of McDowell Road East.

Mr. Bosma felt that the portion of the Drain being enclosed is to accommodate an already constructed garage on a neighbouring property. Mr. Bosma’s opinion was that the Municipality should not have issued a permit to construct the garage and, since the Municipality issued the permit, it is the Municipality that should be responsible for the costs associated with enclosing the Drain.

Mr. Bosma advised the Tribunal that the Outlet Liability assessed against his lands was also too high. Mr. Bosma felt that, similar to Mr. Blizman, the Outlet Assessment levied against his property should be calculated on a unit cost/metre rate similar to that applied to the most downstream property. Mr. Bosma requested that his Outlet Liability assessment be recalculated on that basis and reduced accordingly.

Jeannie Godlouski - Appellant

Ms. Godlouski testified that she has lived in the area for over 60 years. Ms. Godlouski recalled a flood event that occurred approximately 4 or 5 years ago but indicated that she generally has not had any flooding problems on her property. Ms. Godlouski’s opinion was that the Municipal snow plowing operations result in gravel entering the Drain and that this has caused most of the problems with the Drain. It was her opinion that the Municipality should be responsible for the costs associated with repairing the Drain. Ms. Godlouski expressed concern about the enclosure of the Drain adjacent to her property as she was worried that it may result in flooding problems. Ms. Godlouski also advised the Tribunal about a row of trees along the top of the east bank of the Drain adjacent to her property and indicated that it was her desire to have these trees remain. Ms. Godlouski indicated that the enclosed Drain would not provide her property with any additional Benefit and requested that the assessment against her property be reduced.

Neal Morris, P. Eng. – Engineer who prepared the Report

The Engineer testified that the drainage works were carried out under the authority of Sections 4 and 78 of the Act. The Engineer confirmed that the original intent of the work was to deepen the open portion of the Drain in order to provide improved outlet for private tile drainage systems in Lot 13, Concession 8 and provide a better outlet to the upstream portion of the Drain in the residential area situated along the north and south sides of McDowell Road East.

The Engineer indicated that the design of the Drain was impacted by the flat grades, soil condition and depth of drain required. The Engineer was of the opinion that the downstream portion in the agricultural area could remain as an open drain but the upper portion located in the more built up area along McDowell Road East would be a combination of tile with shallow swales within the road allowance. A portion of the original alignment of the Drain just north of the developed lots (now referenced as Branch A) would be repaired from Sta. 0+00 to Sta. 0+360 and abandoned from Sta. 0+360 to Sta. 0+624. The lands formerly served by the reach of open drain to be abandoned would now be serviced by new tile drains referenced as Branch B and Branch C.

In calculating the assessments, the Engineer testified that he divided the work on the main Drain into four intervals and calculated the cost of the work within each interval. Based on the Engineer’s experience and judgement and in consideration of the various types of work being completed in each interval, the Engineer split the assessment between Benefit and Outlet Liability. This assessment was completed after removing any Special Benefit charges that may apply to each interval. The Benefit component of each interval was then applied to the property located within that particular interval. The Outlet Liability was assessed partly against the property located within each interval but primarily against the properties situated upstream of each interval which was based on an adjusted area basis.

An exception to this approach was identified in Interval 4. The Engineer confirmed that he assessed a ‘Cut Off’ Benefit against Roll No. 20-11300 (Bosma) and 20-10100 (Chechak). While the Engineer recognized that these two properties do not drain to Interval 4, it was his opinion that that the construction of Interval 4 would prevent future flood events from McDowell Road East thus developing a Benefit by ‘Cut Off’.

When questioned by the Tribunal about the value of the Benefit assessment levied against Roll No. 20-13410 (R.J. Broiler Farms Ltd.), the Engineer confirmed that it was primarily related to the construction of that portion of the main Drain from Sta. 2+088 to Sta. 2+170. The Engineer advised the Tribunal that he could remove that portion of the Drain to reduce the cost of that portion and, as a result, reduce the Benefit assessment against the Broiler Farms property. The Engineer also acknowledged that the watershed area would need to be amended to take into consideration the private drainage works completed on the R.J. Broiler Farms property. The Engineer advised the Tribunal that while these adjustments would reduce the assessments against the R.J. Broiler Farms property, it would not eliminate the assessments entirely.

The Engineer confirmed that the same approach, being the interval assessment, was generally applied to the Schedule of Assessment for Future Maintenance (Schedule B) but with a reduced Benefit component applied in all the intervals. This Benefit reduction resulted in a heavier weighting of the cost distribution towards Outlet Liability which is directly related to the adjusted area on each contributing property.

The Engineer advised the Tribunal that, in all cases, the Outlet Liability was not calculated on a cost/metre basis. Rather, the drainage area that was served by any interval of the Drain was defined and the relative runoff factor based on land use applied to each parcel in order to get a total equivalent area. Residential lots were assumed to have a runoff rate 1.5 times agricultural lands and roads 2.5 times agricultural lands. The total equivalent area was divided into the Outlet Liability component for that interval to produce a cost/hectare rate that was then applied consistently to all upstream lands affected by each interval.

The Engineer noted that he levied a Special Benefit assessment against Ron’s Custom Spray Service property (Roll No. 40-00600). This Special Benefit was due to the construction of two new access culverts on the property. The Engineer confirmed that he had assessed 50% of the cost of both culverts as a Special Benefit.

The Engineer also confirmed that a Special Benefit assessment was applied against the Verboom property (Roll No. 40-00520) for the additional cost of enclosing the Drain. However, the Engineer indicated that he did not apply any Special Benefit assessment against Ms. Godlouski’s property (Roll No. 40-00500) even though the enclosure abuts her property. Instead, Ms. Godlouski’s property was assessed on the basis of a normal Benefit for an assumed open drain value equal to that of the Verboom property.

Bill Mayes - Drainage Superintendent

Mr. Mayes gave evidence on behalf of the Municipality as to the zoning requirements applied to new construction. Mr. Mayes confirmed that the minimum setback for a structure from the top of a bank of an open drain is 9.5 metres while the setback from a tile drain is 3.5 metres from the centerline of the tile. Mr. Mayes advised the Tribunal that the new garage that is situated on the property abutting Mr. Bosma complies with these requirements.

Findings

The Tribunal finds the Engineer’s methods of dividing the construction costs into intervals, developing appropriate Benefit/Outlet splits of the interval costs and calculating the subsequent assessments against individual parcels technically sound and in keeping with accepted engineering practice.

The Tribunal accepts the decision of the Court of Revision and confirms the assessment adjustments made to Roll No. 20-12700 (Krista, Barbara and Robert Schnarr property) and Roll. No. 20-12900 (Robert and Barbara Schnarr property). The assessment against Roll No. 20-12700 was reduced by the Court of Revision from $500 to $0. The assessment against Roll No. 20-12900 was reduced by the Court of Revision from $700 to $500. The reduction of $700 was added to the Municipal assessment for McDowell Road East. The Engineer supported those adjustments and no evidence was brought to refute the decision of the Court of Revision.

The Tribunal accepts the evidence presented by Mr. Blizman relating to an adjustment in the watershed boundaries of the Mary MacKenzie Drain as a result of the private drainage works completed on his property at his sole cost and expense. The Engineer did not refute this evidence and determined that the equivalent affected area on this property would be reduced from 6.4 hectares to 5.5 hectares. The reduction in the watershed area will impact the calculation of the Outlet assessment and must be reflected in Schedule A – Schedule of Assessment and Schedule B – Schedule of Assessment for Future Maintenance.

Mr. Blizman’s argument for eliminating the portion of the Drain to result in a reduction of the assessment is not accepted by the Tribunal. However, in this case, the Engineer agreed that this portion of the Drain can be eliminated with no repercussions to the other property owners. The Engineer has provided detailed calculations to suggest that the cost reduction in Interval 4 would be approximately $27,900. The elimination of this portion of the Drain reduces the overall project cost by $27,900 and significantly reduces the assessment to the property owners situated in Interval 4.

The Tribunal does not accept the methodology put forth by Mr. Blizman regarding the calculation of Outlet Liability. The cost/metre basis suggested is neither fair nor equitable and is not considered an acceptable means of calculating Outlet Liability assessments. The methodology as outlined by the Engineer in his evidence is the standard practice applied throughout the province and it is the method that should be applied in these circumstances. This position also applies to the appeal against the Outlet Liability assessment brought by Mr. Bosma.

Mr. Bosma also requested a reduction in the Benefit assessment resulting from the ‘Cut Off’ Benefit assigned to this property (Roll No. 20-11300). This would also apply to the neighboring property to the east (Roll No. 20-10100 - Chechak property). While the Tribunal is of the opinion that this is a legitimate reason for an assessment to be levied against a property, the Tribunal is of the view that it does not apply in these circumstances.

The Tribunal accepts the evidence of Mr. Bosma, based on his long history with the property, confirming that flood events from the McDowell Road East have never backed up the Drain onto his property. This information would also be true for the next upstream property, Roll No. 20-10100 - Chechak property). It is accepted that no ‘Cut Off’ benefit has ever been applied to the Bosma property. The assessment shown under Benefit in Interval 4 against the Bosma Property shall be reduced from $6,000 to $0. The assessment shown under Benefit in Interval 4 against the Chechak property (Roll No. 20-10100) shall be reduced from $5,000 to $0.

While the Tribunal appreciated Ms. Godlouski’s concern about her assessment, she failed to provide any evidence to suggest that the Benefit assessment levied against her property was either excessive or unfair. The Tribunal accepts the Engineer’s evidence that the closed drainage system adjacent to her property will eliminate all long term erosion of the Drain banks and provide protection to the existing trees along the east bank of the Drain. Further, the Engineer’s evidence was that the Drain will more efficiently and effectively carry the excess runoff from the upstream lands past her property without negative impacts. Therefore, it is the opinion of the Tribunal that a benefit accrues to this property. The Tribunal accepts the Engineer’s evidence that all additional costs related to the enclosure are assessed as a Special Benefit to Roll No. 40-00520 (Verboom property) and that Ms. Godlouski and the Verboom property are assessed the same value of normal Benefit as would have been the case for the improvement of the open Drain.

In his evidence, the Engineer confirmed that he did not levy a Special Benefit charged to Roll No. 40-00600 (Ron’s Custom Spray Service Inc.) for two new farm culverts. The Engineer acknowledged that this assessment is contrary to typical assessment guidelines and Agriculture Drainage Infrastructure Program Administrative Policies (ADIP). Under the guidelines, the assessment of costs is typically 50% as a Special Benefit cost to the owner for the first access and 100% of the cost for any subsequent crossings. Further, the ADIP policies provide grant assistance on the cost of the first culvert only. The Report should identify these Special Benefit assessments and identify the Special Benefit assessments that are not eligible for a grant.

ORDER OF THE TRIBUNAL

The Tribunal orders as follows:

1. The assessments to the properties included in the Mary MacKenzie Drain shall be revised as indicated in the attached detailed calculations of the Schedule of Assessment as revised by the Tribunal;

2. The appeal by R. J. Broiler Farms Ltd. as represented by Bradley and Stephanie Blizman under Section 54(1) of the Act is hereby granted in part as detailed in the revised Schedule of Assessment;

3. The appeal by Peter Bosma under Section 54(1) of the Act is hereby granted in part as detailed in the revised Schedule of Assessment;

4. The appeal by Jeannie Godlouski under Section 54(1) of the Act is denied;

5. The Report shall be modified to clearly identify the Special Benefit assessment against Roll No. 40-00600 (Ron’s Custom Spray Service Inc. property) related to the farm culvert construction as well as identify the portion of this cost that is not eligible for a grant.

6. The Engineer shall prepare a revised Schedule B – Schedule of Assessment for Future Maintenance which applies the same approach taken to develop the original Schedule, but gives consideration to all adjustments that flow from the revision of Schedule A.

7. The non-administrative costs of the Municipality incurred with respect of these appeals shall form part of the cost of the drainage works, and such costs include the Engineer’s fees and expenses for preparing the Report, as well as well as the Engineer’s fees and expenses for attending and participating in the hearing.

8. There shall be no other Order as to costs and all parties are responsible for their own costs.

Dated at London, Ontario this 1^st^ day of February, 2016.