Lynne and Rainer Pahl v. Town of Essex, 2017 ONAFRAAT 15

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:

Southwest Branch of the Shepley Drain (RE) Town of Essex

Southwest Branch of the Shepley Drain

STATUTE:

Drainage Act

HEARING:

October 17, 2017

DATE OF DECISION:

November 6, 2017

011Southwest17

NEUTRAL CITATION:

2017ONAFRAAT15

Southwest branch of the shepley DRAIN

Town of Essex

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 Lynne and Rainer Pahl from Harrow, Ontario under Section 54(1) of the Drainage Act with respect to the Southwest Branch of Shepley Drain, Repair and Improvement Snake Lane to Gore Road, Geographic Township of Colchester South, Town of Essex, Ontario.

Before:

Kirk Walstedt, Chair, Edward Dries, Vice-Chair and Lee Holling, Member

Appearances:

Lynne and Rainer Pahl, Appellants

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

DECISION OF THE TRIBUNAL

The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held a hearing in the Town of Essex on October 17, 2017. The Engineer’s Report dated November 8, 2016 for the Southwest Branch of the Shepley Drain (“Report”) was prepared by Rood Engineering Inc. and submitted by Gerard Rood, P. Eng., (“Engineer”). An appeal was filed by Rainer and Lynne Pahl under Section 54(1) of the Drainage Act (“Act”).

Tanya Tuzlova, Operations/Drainage Clerk of the Town of Essex 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. Ronald Stefani and Roger Stefani, assessed landowners requested and were granted participant status.

The Town of Essex filed an Affidavit of Service, dated October 17, 2017 as proof that all parties had been served with the Notice of Hearing.

Background

The Report for the repair and improvement of the Southwest Branch of the Shepley Drain was initiated under Section 78 of the Act. The Southwest Branch of the Shepley Drain is an open and covered drain that starts at Erie Road and extends easterly, downstream, to cross Gore Road. It then continues north and northeasterly to an outlet into the Shepley Drain on the east side of Snake Lane. The Report was intended to repair and improve the reach of the covered drain extending from Snake Lane to Gore Road.

The Engineer reviewed the following past Reports in order to determine the watershed area affected by the drain and hence the design parameters of the improvements to the existing drain:

• October 16, 1968 – report by C.G.R. Armstrong, P. Eng.

• April 12, 1978 – report by Dennis Averill, P. Eng.

• February 4, 1994 – report by Nick Peralta, P. Eng.

• December 12, 2006 – report by Gerard Rood, P. Eng.

Generally, the Report recommended the total replacement of the existing covered drainage system north of Gore Road to its outlet into the open portion of the drain along the east side of Snake Lane with sealed gasket joint, high density polyethylene (H.D.P.E.) smooth walled pipe. The work would also include a number of new catch basins and maintenance holes which will facilitate improved access to the drain for maintenance of the drain in the future.

The Town of Essex (“Town”) held a meeting to consider the Report on December 5, 2016. It does not appear that either Rainer or Lynne Pahl attended that meeting. No appeals against the content of the Report arose at that time. On January 16, 2017, the Town gave first and second reading and provisionally adopted a bylaw for the works recommended in the Report.

The Court of Revision was held on February 21, 2017. Appeals against the assessments were raised by Christopher Palmer, Peter McKeen, and Lynne Pahl. The Palmer and McKeen appeals primarily related to the relative value of Benefit and Outlet Liability assessment against their properties. The Pahls’ appeal also related to these issues and as well claimed that the affected area on the AFF Farms Ltd., property was incorrect in the Report. The Court adjourned the hearing and instructed the Engineer to undertake a topographic survey on the properties in question to more accurately determine the watershed limits. Further, they instructed that the engineer develop the assessment values using first principles rather than rely on historical data from the previous Report.

The Engineer submitted the Amended Schedule of Assessment for the drainage works to the Town, attached to correspondence dated March 27, 2017. This correspondence described, in detail, the methodology applied in the development of the Amended Schedule. It also addressed several specific questions raised by Lynne Pahl during this process.

The Town reconvened the Court of Revision on May 1, 2017. The Engineer presented the Amended Schedule of Assessment and addressed question from Council members as well as Lynne Pahl. The Amended Schedule of Assessment was adopted by the Court of Revision and the Court was closed.

Town staff arranged an additional meeting with the Engineer and Lynne Pahl on May 16, 2017 to further discuss the issues of concern to Mrs. Pahl. Rainer and Lynne Pahl subsequently filed an appeal under Section 54(1) of the Act against the decision of the Reconvened Court of Revision dated May 21, 2017

Issues

Should further changes to the Amended Assessment Schedule as revised by the Engineer and adopted by the reconvened Court of Revision be made?

Evidence

Mr. Gerard Rood, P. Eng. – Engineer

The Engineer testified that the drainage works were initiated and carried out under Section 78 of the Act. The general intention of the work was to replace a reach of covered drain constructed under a report in 1978 that was no longer functioning properly. The new covered drain was designed to provide a higher level of service and as a result, it was designed as a larger diameter covered drain to be installed at a deeper depth.

He confirmed that he researched the previous bylaws of this drain and relied on the information related to the watershed definition from the 1968, 1978, 1994 and 2006 reports. No issues related to the watershed limits or drainage area were raise at the onsite meeting held on January 27, 2016. The design of the new covered drain was based on current design practices and standards and the Report was published on November 8, 2016.

The Engineer testified that after the Report was considered and provisionally adopted by the Town on December 5, 2016, he received a call from Mrs. Pahl on December 12, 2016. He claimed to have spent considerable time answering her questions and explaining design standards and the assessment rationale to the Appellant at that time.

The Engineer and Town staff again met with Mr. and Mrs. Pahl on February 17, 2017. One of the issues questioned at that time was the accuracy of the watershed limits and consequent drainage area shown in the Report on the AFF Farms Ltd., property. He confirmed that these same concerns were brought by the appellants to the Court of Revision on February 21, 2017. He reported to the property owners who attended the Court that the watershed areas were determined from the previous bylaws. He also stated that he provided an extensive explanation of the development of the Benefit and Outlet Liability assessments shown in the Report. At the end of that meeting, the Court asked that he undertake a more detailed investigation of the watershed limits, the affected areas on parcels identified as having concerns and provide a more detailed analysis of how the assessments were developed. Consequently, the Court of Revision was adjourned.

The Engineer stated that he undertook a detailed topographical survey on the properties described as Roll No. 700-02200 (AFF Farms Ltd.,), 700-02290 (Pahl), 640-32300 (McKeen), and 640-32400 (Palmer). He understood these to be the properties questioning the assessment. A plan dated March 20, 2017 that illustrated the topographical features, contour elevations and hence the limits of the watershed on these properties was produced and filed with the Amended Schedule of Assessment. He confirmed that he used online aerial mapping to determine land uses within the parcels reviewed and applied various appropriate runoff coefficients for the land uses observed. The plan also identified Benefit contours on each property studied which illustrate the development of the Benefit assessment value. He confirmed that the Benefit rates applied to residential lands was two times that of agricultural lands and the Benefit rates applied to roads was two and a half times that of agricultural lands. He stated that all of the information gathered and contained within the correspondence dated March 27, 2017 was provided to all assessed property owners prior to the reconvened Court of Revision.

The Engineer testified that at the reconvened Court of Revision, Mrs. Pahl continued to question the extent of drainage from her property into the drain. It was the Engineer’s clear opinion that “ approximately 98% of her lands drain towards the drainage works and the northeast corner that may at times flow in a northerly direction can also be directed to this Municipal Drain outlet that crosses the southerly portion of their property”. Further, he confirmed that this is the only readily available outlet capable of providing direct drainage outlet for their property.

It was also confirmed that the watershed limit on the AFF Farms Ltd., property was not found to be correct and that the area affected by this drain on this property was greater than shown in the original Report. This resulted in an increase in the Benefit and Outlet Liability assessment against the AFF Farms Ltd., property and consequent adjustment of all other assessments in the watershed.

The Engineer expressed the opinion that the Amended Schedule of Assessment as adopted at the reconvened Court of Revision is fair and equitable and should not be further altered.

When questioned by Lynne Pahl as to the availability of the detailed field data gathered by the Engineer, he confirmed that the contours on the plan attached to the March 27, 2017 submission were developed directly from the field data and that is all that is available. She also enquired as to why the properties owned by Roger, Ronald and Etna Stefani were not investigated in the same level of detail as hers. The Engineer replied that no issues were ever identified by the owners of the Stefani lands to that point in the process. Accordingly, no further investigation on these lands was undertaken.

The Engineer was questioned as to why there were variable adjustments in the values of Benefit and Outlet Liability assessments to all properties within the watershed resulting from the increase to the assessment against the AFF Farm Ltd., property as opposed to a proportional decrease in the assessment against all other properties. The Engineer confirmed that he accepted the direction of the first sitting of the Court of Revision to re-analyse the assessment of all properties from first principles. This included a more detailed application of Benefit contours, current land uses, and runoff coefficients on each property. This resulted in some additional adjustments to the assessments on some properties.

The Engineer was questioned as to why he did not identify the error in the limits of the watershed on the AFF Farms Ltd. property prior to the first sitting of the Court of Revision. He replied that he had used the watershed limits on this property as defined in the previous reports; no issues related to the accuracy of the watershed limits were raised at the site meeting or the consideration of the Report; he had no reason to question the accuracy of the defined watershed area on the AFF Farms Ltd. property and was unaware of this issue until it was raised to him just prior to the Court of Revision. He acknowledged that Mrs. Pahl claimed that there was an error in the watershed area on this property in her telephone conversation with him on December 12, 2016. However, no reliable data or evidence was offered to confirm that statement.

Mr. Ronald Stefani asked as to whether the Engineer planned to do a detailed topographic survey on his property and adjust the watershed boundary as necessary. The Engineer stated that no issue regarding the watershed boundary on the Stefani properties was raised at the site meeting, consideration of the Report or the two sittings of the Court of Revision, as a result, no further survey of the Stefani properties was thought necessary.

Rainer & Lynne Pahl – Appellant

Mr. Pahl offered into evidence a spreadsheet that illustrated the values of the assessments proposed for all properties identified in the Report. The spreadsheet illustrated the original value of the Benefit assessments on a rate/acre basis and the adjusted values of Benefit assessment on a rate/acre basis. The original versus adjusted value of the Outlet Liability values were similarly listed and compared. The spreadsheet identified properties that had increased rates, decreased rates and notable changes. However, no evidence was brought as to the significance of this data.

Mr. Pahl testified that he received a copy of the Report and a Notice for the meeting to consider the Report three days after the actual meeting was held. The Town confirmed that the Report and Notice for the meeting to consider the Report were sent by regular mail. When questioned, Mrs. Pahl confirmed that they have had problems with Canada Post delivery to their property in the past.

Mr. Pahl stated that he personally undertook a measurement of the watershed area on the AFF Farms Ltd. property and determined it be in the order of 40 acres. He confirmed that this information was provided to the Engineer prior to the first Court of Revision meeting held on February 21, 2017. He also confirmed that the Engineer did not accept this information as factual at the Court of Revision and continued to rely on the historical data from the past reports. Mrs. Pahl also questioned the accuracy of the watershed area shown in the historical reports on the Stefani farms. However, she also admitted that no additional surveys were carried out to confirm the watershed areas on these properties.

Mrs. Pahl stated that she has asked the Engineer to provide the data measured in the field but has been refused. She stated that this data will support her argument related to the direction of drainage flows on her property.

Mr. Pahl argued that they were forced to convince the members of the Court of Revision to instruct the Engineer to further investigate the watershed area issues and they were surprised to understand that additional engineering costs would ensue as a result of this review. It was his opinion that the Engineer should have already known about the discrepancies in the watershed boundary and was negligent in not addressing the issue in the original Report.

Mrs. Pahl confirmed that she witnessed the Engineer’s staff take extensive measurements and elevations on and around her property. Despite their requests for the data, she claims that the Engineer refused to provide the data as she believes it will prove that the natural direction of drainage from her property is to the north. She claimed to have witnessed surface runoff events flow to the north off her property. It was her stated opinion that the revised watershed boundary suggested by the Engineer is incorrect. Her technical support for his position was her own interpretation of the Engineer’s topographical data. She also referenced a ponded area shown on an aerial photograph in the most north-easterly corner of her property to confirm no flow to the south.

When questioned by the Engineer, Mr. & Mrs. Pahl confirmed that they refused to allow Municipal staff to enter onto their property in order to take additional elevations to confirm the runoff patterns from their property.

It was Mrs. Pahl’s position that the assessment is incorrect because the revised watershed boundaries are still incorrect. She also claimed that there are lands that abut Snake Lane that contribute flow to this drain that are not assessed at all.

Regarding the assessment comparison spreadsheet that was offered into evidence, Mrs. Pahl confirmed that the Benefit and Outlet Liability assessments for each property was shown as a ‘rate/acre’ value for each property in order to compare their assessments on an ‘apples to apples’ basis. She admitted that she could not understand the development of the assessments. Although she requested an explanation of the assessment methodology from the Engineer, it was her testimony that the Engineer’s response was incorrect and misleading. She admitted that she had no expert engineering opinion to support her position but rather relied on the information shown on the detailed topographical plans prepared by the Engineer himself.

Mr. Pahl questioned the validity of the assessments to all properties in the watershed. He understood that the assessment against the AFF Farms Ltd. property would go up as a result of the watershed adjustment but stated the belief that all other assessed properties should then be decreased by a consistent proportional rate. As the assessment adjustments against various properties were inconsistent, he concluded that they must be in error. He admitted that he does not understand how the assessments were developed and does not accept the Engineers explanation.

When questioned, Mr. and Mrs. Pahl confirmed that they had no background in assessment calculation techniques and could not develop a proper assessment on their property. They confirmed that they are aware that there are ‘many complicated variables’ that are used in the development of an assessment. They reason that ‘assessment equations’ should be made available that will show the calculation methodology.

Ron Stefani - Property Owner

Mr. Ron Stefani questioned the increase in his assessment resulting from the watershed adjustment on the AFF Farms Ltd. property. It was also his opinion that the limits of the watershed as it is related to his property may be incorrect although no evidence to that effect was presented.

When questioned, Mr. Stefani admitted that he did not raise this issue nor file any related appeal at the site meeting, the consideration of the original Report or the first or second sitting of the Court of Revision. He claimed that he did not receive a full set of the documents distributed by the Town on this matter.

Roger Stefani - Property Owner

Mr. Roger Stefani testified that his property is comprised of untiled, sandy land that does not require drainage improvements and he opposes the works and the related assessment against his lands. It was his opinion that the whole project should be reviewed.

Findings:

The Tribunal finds the Engineer’s methods of dividing the construction costs into intervals, developing appropriate Benefit/Outlet splits of the costs, giving consideration for variable runoff factors and calculating the specific assessment against each property technically sound and in keeping with accepted engineering practices.

The Tribunal accepts the original approach taken by the Engineer to develop the limits of the drainage area by researching past bylaws for works on this same drain. The existing bylaws, dating back approximately 50 years, have defined the drainage areas on the various properties within this watershed and they have not been previously questioned. Further, the potential need for alterations in the watershed limits was not raised at the onsite meeting or the meeting to consider the Report. Given this background it would not be normal practice to undertake extensive topographical investigations to confirm the watershed limits of this drainage works.

However, the watershed area, and hence the associate assessment levied against any property, can be appealed to the Court of Revision. It was proper for the Court of Revision to hear the appeal from the Pahls and instruct the Engineer to undertake additional investigations related to that appeal. Further, it was proper for the Court of Revision to request that the assessments on all properties be reviewed from ‘first principles’ in order to determine the impacts to the individual property assessments resulting from additional development or changes in land use that may have occurred on the property since the last bylaw.

The Engineer filed into evidence, documents that described and illustrated the field investigations carried out and the approach taken to develop the Amended Schedule of Assessment for the works recommended in the Report. Mr. and Mrs. Pahl questioned the accuracy of the field work and the conclusions drawn by the Engineer from the field work. They claimed the field work to be incorrect. Their only contradictory evidence was based on a personal observation of surface water flow. They were unable to provide any tangible supporting evidence to refute the quality or accuracy of the field investigation or the conclusions drawn from it. The Tribunal accepts the evidence of the Engineer on the issue of defining the watershed limits.

The Tribunal rejects the argument that the Engineer should have known about the alterations required in the watershed limits that resulted in extra study and consequent Report costs. The issue was not raised at the onsite meeting nor was it raised at the meeting to consider the Report. It was raised to the Engineer prior to the first sitting of the Court of Revision by which time the provisional bylaw had already been adopted at that point and there was no evidence provided to refute his findings. When raised at the Court of Revision, it was appropriate to adjourn the Court and complete the additional investigations and re-assessments. It is standard practice to research past bylaws and rely upon the data gathered from them unless convincing data is provided that contradicts the governing bylaw and the changes can be included in the Report.

Mr. and Mrs. Pahl admitted that they do not understand the variation in assessments on all of the parcels between the original assessment and the revised assessment. They offered an analysis based on assessments rationalized to a cost/acre basis. It should be noted that, in standard practice, the Benefit assessments are never calculated or compared on a cost/area basis. The Pahls were of the opinion that any increase in cost levied to AFF Farms Ltd. should result in a proportional decrease in all other assessments. This assumption is incorrect. The evidence of the Engineer was that these values all changed when the reassessment was done from first principles. This impacted the development of the Benefit and Outlet Liability assessment on all parcels. Also, changes in land uses and consequent runoff factors on various parcels resulted in assessment adjustments. The Tribunal accepts the evidence of the Engineer that the assessments against all lands are fair and equitable.

Mr. and Mrs. Pahl are of the opinion that the Engineer should provide to them all detailed field data measured on and around their property. Although they have not viewed the data they claim that it will show that the flow of surface water on their property is to the north. The Tribunal rejects the supposition. Further, all field notes and data and all background research done by the Engineer on any project are the property of the Engineer and he has no responsibility to provide this information to any landowner.

Mr. Ronald Stefani and Mr. Roger Stefani both raise issue with the watershed limits and the assessments levied against their lands. It is important to note that no assessment appeal was filed by Mr. Ronald Stefani or Mr. Roger Stefani to the Court of Revision. Consequently, it was reasonable for the Engineer to assume that the historic watershed limits on those specific properties were correct and need not be investigated further. Neither owner raised the issue at the reconvened Court of Revision. Finally, neither owner provided any evidence that would suggest a need to change the watershed areas shown in the Report and subsequently modify the assessments against these properties.

Order of the Tribunal

The Tribunal orders as follows:

1. That the amended assessments as set out in the submission by the Engineer to the Court of Revision dated March 27, 2017 and subsequently adopted at the reconvened Court of Revision on May 1, 2017 be confirmed;

2. 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 for preparing the Report and the investigations required to produce the amended assessment as well as the Engineer’s fees and expenses for preparation and attendance at the Tribunal hearing.

3. There shall be no other Order as to costs. All parties shall be responsible for their own costs.

Dated at Essex, Ontario this 6th day of November, 2017.