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) Town of Fort Erie and City of Port Colborne
Zavitz Municipal Drain, Sherkston North Branch Drain, East & West Trail Branch Drains (RE) Town of Fort Erie and City of Port Colborne 2017ONAFRAAT01
STATUTE:
Drainage Act
HEARING:
January 23, 2017
DATE OF DECISION:
February 13, 2017
008Zavitz14
NEUTRAL CITATION:
2017ONAFRAAT01
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; and by the City of Port Colborne from the decision of the Court of Revision and section 72(1) request for review of the Engineer’s Account; and by Gary R. Clee, the City of Port Colborne, and joint owners 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 by the Agriculture, Food and Rural Affairs Appeal Tribunal from the Interim Decision of September 28, 2015.
AND IN THE MATTER OF: An Order by the Agriculture, Food and Rural Affairs Appeal Tribunal from the Interim Decision of April 14, 2016.
Before:
Paula Lombardi, Vice-Chair; Andrew McBride, Member; Richard Smelski, Member
Appearances:
Paul Marsh, Engineer for AMEC Foster Wheeler Environment & Infrastructure
Dave Maiden, Drainage Superintendent, Town of Fort Erie, Respondent
Alana Vander Veen, Drainage Superintendent (A), City of Port Colborne, Appellant
Chris Lee, Manager, City of Port Colborne, Appellant
DECISION OF THE TRIBUNAL
Background
The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held a hearing that continued over the course of several days in the Town of Fort Erie regarding this drainage project. The hearings were held on August 5, 2015, April 7, 2016, May 19, 2016, October 27, 2016, and January 23, 2017 respectively. Interim decisions and Orders relating to this matter are discussed in more detail below and available throughCanadian Legal Information Institute http://canlii.ca/en/on/onafraat/.
The initial engineer’s report 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., dated July 29, 2014. The Tribunal issued an Interim Decision, dated September 28, 2015 (“Interim Decision #1”). The Tribunal then subsequently issued a second Interim Decision, dated April 14, 2016 (“Interim Decision #2”). As a result of Interim Decision #2, a revised Engineer’s Report, dated April 25, 2016 (“Report” or “Engineer’s Report”), was prepared by AMEC Foster Wheeler Environment & Infrastructure and submitted by Mr. Paul Marsh, P. Eng., (“Engineer”).
At the hearing on May 19, 2016 to review the April 25, 2016 Report, it was determined that the concerns of Mr. Clee and the City of Port Colborne had been satisfactorily addressed. However, it was discovered that there were a number of areas in the Report where the Priebe-Hilmayer property was incorrectly identified. Mr. Priebe also raised concerns about potential tree damage on his property and the working space identified for the Sherkston North Branch. Mr. Priebe and Ms. Hilmayer appealed the benefit assessment levied against their property and the allowances provided to their property.
The Tribunal instructed Mr. Marsh to revise the Report to correctly identify the Priebe-Hilmayer property and to review the assessment and allowance calculations for that property. Also, with the assistance of the two Drainage Superintendents, Mr. Marsh was instructed to attempt to resolve Mr. Priebe’s and Ms. Hilmayer’s concerns regarding potential tree damage and the specified working space on their property in conjunction with the Sherkston North Branch.
Mr. Marsh proceeded to address these issues, with the assistance of Ms. Vander Veen and Mr. Maiden, and provided a revised Report dated July 11, 2016. That Report was circulated and the Tribunal continued with the hearing on October 27, 2016 to review the Report and address a further appeal from Mr. Priebe and Ms. Hilmayer (“Appellants”) relating to the revised assessments. Shortly after that hearing was convened, it was discovered that part of the assessment schedule for the Sherkston North Branch had been omitted from the revised Report that had been circulated to the parties. The hearing was adjourned and Mr. Marsh was instructed to correct the Report and provide it to the Town to be circulated to all parties. Another hearing date was scheduled to review the Report and deal with the Priebe-Hilmayer appeal.
That hearing was scheduled to continue on December 16, 2016 but, due to inclement weather and road closures, it was rescheduled to January 23, 2017.
Margarete Taddeo, the Records Management Assistant with the Town of Fort Erie, acted as Clerk of the Town for these proceedings and 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, January 5, 2017 as proof that all parties had been served with the notice of hearing.
Overview
Interim decisions 1 and 2 provide an extensive history relating to the project, the Engineer’s Reports and a detailed overview of the drainage work.
Issues
Has the Engineer’s Report dated October 28, 2016 been fully and properly corrected?
Should the assessments as set out in this Engineer’s Report be amended?
Evidence
Mr. Paul Marsh, P. Eng., on behalf of AMEC Foster Wheeler Environment & Infrastructure
Mr. Marsh testified before the Tribunal that the omissions identified in the prior Report had been rectified in the revised Report.
In response to the Priebe-Hilmayer appeals submitted in May 2016, Mr. Marsh advised that all of the issues had been addressed, with the exception of the amount of benefit assessment to their property.
Mr. Marsh testified that the actual construction work proposed to be undertaken on the Priebe-Hilmayer property consists of 90 metres of 375mm diameter solid closed drain and 71 metres of open drain, with clearing, brushing, spoil levelling and seeding at a total cost of $21,335, and that the City was being assessed for all of the costs of the closed drain.
Mr. Marsh further testified that the Priebe-Hilmayer property was being provided with $753 in allowances while the neighbouring Neal property was being provided with $439 in allowances, under the provisions of sections 29 and 30 of the Act. These allowances should also be included as part of the cost of this section of the work, bringing the total to $22,527, plus engineering and administration.
Mr. Marsh testified that, in his opinion, the benefit assessment of $359 to the Priebe-Hilmayer property was fair and reasonable under these circumstances. Mr. Marsh further explained that the total net assessment to the Priebe-Hilmayer property is estimated to be $705.
Ms. Alana Vander Veen, Drainage Superintendent (A), City of Port Colborne
Ms. Vander Veen advised that the City of Port Colborne has agreed to supply and install a surface water inlet as part of the project at the time of construction, if requested by Mr. Priebe and Ms. Hilmayer. Ms. Vander Veen confirmed that, in her opinion, the other issues previously raised by Priebe and Hilmayer have been fully addressed.
Mr. David Maiden, Drainage Superintendent, Town of Fort Erie
Mr. Maiden testified that he met with Mr. Priebe, Ms. Vander Veen and Mr. Marsh at their property and, to his knowledge, all of the Priebe and Hilmayer concerns have been addressed. Mr. Maiden further advised that it was his opinion that any drainage issues on the property can be addressed by grading to the proposed new open drain, using the excavated material as fill, where required.
Mr. Tim Priebe, Appellant
Mr. Priebe was not in attendance at the October 27, 2016 hearing or the January 23, 2017 hearing. Mr. Priebe provided the Tribunal with a written submission confirming that the Engineer and the Drainage Superintendents had addressed their concerns, with the exception of the amount of the direct benefit levied against their property.
Mr. Priebe is of the opinion that the benefit assessment is related to the closed portion of the drain being constructed on his property and that, since it is a solid pipe, it will not provide any drainage for the west side of his lot, which is the wettest part of his lawn. Mr. Priebe also stated that this closed drain is being installed due to the proximity of the neighbours’ septic bed and not for any reason related to his property. Mr. Priebe further stated that in the first report he received, his property was assessed $180 for benefit and that amount has been increased to $359. Mr. Priebe indicated that he does not understand the rationale for the increase when there has been no change to the proposed work.
Findings
Based on the Tribunal’s review of the Engineer’s Report dated October 28, 2016, and taking into consideration that neither municipality nor any landowner, other than Mr. Priebe and Ms. Hilmayer, raised any objections to this Report, the Tribunal confirms the Report and recommends it for adoption, subject to the following Order.
The Tribunal finds, as it relates to the Priebe and Hilmayer appeal of the benefit assessment of $359 to their property, that:
With the installation of a catchbasin in the roadside ditch at the low front corner of this property, the runoff from the road that currently flows onto the property should be eliminated;
With the road drainage being cutoff and conducted through 90 metres of closed pipe, plus the construction of 71 metres of open drain in the lower part of the lot, the drainage of this property will be significantly improved;
If the owners request at the time of construction, the City has committed to supply and install a surface water inlet device to be connected to the closed drain to further improve the drainage along the closed portion of the drain at no cost;
This improved drainage will increase the value of the property;
The installation of a closed drain adjacent to the landscaped front, side and rear yards of the lot will be more esthetical pleasing than would an open drain that close to the house;
Since the City is being assessed the full cost of the closed portion of the drain, the property is receiving the benefit of that section of the drain without any cost;
With the cost of the open portion of the drain on this property exceeding $3700 and the benefit assessment to the two affected properties being $718, a benefit assessment of 19.4% for the most upstream section of the drain is reasonable;
Having use of the excavated material from the open drain is a benefit to the property since that material can be used to regrade any low areas to improve the drainage of the lot.
Based on these points, the Tribunal finds the benefit assessment to the Priebe-Hilmayer property is fair and reasonable.
Order of the Tribunal
The Tribunal thereby orders that:
The appeal of Mr. Priebe and Ms. Hilmayer from the revised Engineer’s Report, relating to their benefit assessment is denied;
The non-administrative costs of the Municipality incurred with respect to this appeal shall form part of the cost of the drainage works, and such costs shall include the Engineer’s fees and expenses only for preparing for and attending the Tribunal hearing; and
There shall be no other Order as to costs and all parties shall be responsible for their own costs.
Dated at London, Ontario this 13th day of February, 2017.