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:
Young and Hopf-Wagner Drains (RE) City of Port Colborne
Young and Hopf-Wagner Drains
STATUTE:
Drainage Act
HEARING:
January 16, 2019
DATE OF DECISION:
February 27, 2019
010Young&Hopf-Wagner18
NEUTRAL CITATION:
2019 ONAFRAAT 03
Young AND HOPF-WAGNER drains
City of Port Colborne, Ontario
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 Dianna Kit Mete and Lois Kit under sections 48 and 54 of the Drainage Act, Alberto and Raffaela Armenti under section 48 of the Drainage Act, John Grimaldi under section 54 of the Drainage Act, and Edgar Edwards under section 48 of the Drainage Act, with respect to the Young and Hopf-Wagner Drains in the City of Port Colborne, Ontario.
Before:
John O’Kane, Vice-Chair; Andrew McBride, Vice-Chair; and Tim Mousseau, Member
Appearances:
Dianna Kit Mete, Appellant
Rosina Mete, representative for the Appellant Lois Kit
John Grimaldi, Appellant
Dan Armenti, representative for the Appellants Alberto and Raffaela Armenti
Edgar Edwards, Appellant
Sheldon Nease, affected landowner
Michael DeVos, P. Eng., presenting the Report prepared by J.M. Spriet, P.Eng.,
Brandon Widner, P. Eng.
DECISION OF THE TRIBUNAL
Background
On January 16, 2019, in the City of Port Colborne (“City”), the Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) heard appeals under Sections 48 and 54 of the Drainage Act (“Act”) regarding the Young and Hopf-Wagner Drains.
The Young Drain and Hopf-Wagner Drain are long-standing municipal drains and the appeal issues arose from an Engineer’s report drafted in response to the City commissioning a report under section 78 of the Act, for the “better use, maintenance or repair” of the Young and the Hopf-Wagner Drains.
The Engineer’s report, (“Report”) was dated July 27, 2017 and was prepared by Mr. J.R. Spriet, P. Eng., of Spriet Associates Engineers & Architects Inc. Due to ill health of Mr. Spriet at the time of the appeal hearing, Mr. Michael DeVos, P. Eng. (“Engineer”) assumed responsibility for the Report. Brandon Widner, P. Eng. assisted Mr. DeVos.
Carrie McIntosh, Deputy Clerk of the City of Port Colborne, performed the duties of Clerk of the Tribunal for the appeal hearing.
Preliminary Matters
Before the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report parties to the hearing.
The City of Port Colborne filed an Affidavit of Service, dated December 17, 2018, proving that all parties had been served with the Notice of Hearing.
Overview
The Engineer testified in overview that the drainage works proposed by the Report were to repair and improve the existing Young and Hopf-Wagner Drains.
The Engineer explained the work proposed in the Report as follows:
to excavate a low-flow channel in the Young Drain from its outlet in the Tee Creek Drain upstream to the top end of the Young Drain, where it reaches the Hopf-Wagner Drain, including mechanical brushing and clearing of trees on one side for a working space and for spoil levelling;
to excavate a low flow channel in the Hopf-Wagner Drain from the Young Drain upstream to and across Forkes Road, including mechanical brushing and clearing of trees on one side for a working space and for spoil levelling;
to relocate a portion of the Hopf-Wagner Drain along the south side of the Canadian National Railway (“CNR”);
to remove brush and obstructions in the channels of both drains;
to install new road culverts, farm crossings and several low-flow railway crossings;
to seed the exposed ditch banks, the excavated material and the buffer strips along the channels and;
in some locations, to install nursery plantings.
The Engineer testified that the drains are approximately 10,000 metres in total length and service a watershed of approximately 1,400 hectares.
The Engineer estimated the total cost of the works was just under $800,000.
The Engineer testified that the $800,000 cost of the works was apportioned among the properties in the watershed using a modified Todgham assessment methodology which involved isolating the costs associated with each section of the drain and assessing those costs to the properties in each section. The first allocation of costs was related to benefit and apportioned among the properties in relationship to the level of benefit the Engineer considered the property would receive from the improvements. The remaining costs of each section were then apportioned to the upstream lands and roads as outlet assessment based on equivalent areas that were adjusted for the unique use of the property. The Engineer gave the example of a bush lot having a lower “run-off” rate than a paved road or an industrial lot that would have a higher “run-off” rate and how he made area adjustments based on those land use characteristics in his outlet assessment.
The Engineer testified that no allowances were provided for right-of-way under section 29 of the Act since these were long-standing drains and allowances for right-of-way would have been provided in the original drainage reports. He did explain that he provided damage allowances under section 30 of the Act to properties where trees would be cleared, which he described as a nominal allowance based on tree removal in the 15-metre working space for the drainage works. He explained that he used $2,000 per hectare for bush areas and a higher value for field areas. He provided an example of a property with 200 metres along the channel that would receive a section 30 damage allowance of $600. (15m x 200m = 3,000 square metres or 0.3-hectare x $2000 = $600). He compared the $2000 per hectare rate he used with other drainage reports where the rates ranged from a low of $1,400 per hectare to a high of $3,200 per hectare. He pointed out that, under current guidelines, it was open to him to not provide such allowances for tree removal along an existing drain right-of-way as, if the tree clearing had been done as drain maintenance under section 74 of the Act, there would be no such damage award.
Evidence, Analysis and Findings
- Dianna Kit Mete and Lois Kit Appeal
The Young Drain traverses approximately 900 metres of the Appellants’ farmland where they grow cash crops. Ms. Kit Mete argued that a $0 allowance in the Report was inadequate in the circumstances. She asked the Tribunal to make a section 30 award of $1,800-$2,000.
The Engineer testified that on taking over responsibility for the Report, he reviewed the Appellants’ situation and concluded that a section 30 allowance of $1,790-$1,800 was appropriate and that, if the Tribunal made such an award, the increased cost should be added to the section 1 costs on the Young Drain and apportioned to the section 1 properties as outlet.
Given the Engineer’s consent regarding the Dianna Kit Mete appeal and given the Report anomaly of no section 30 allowance and, given the Appellant’s agreement that she would be content with $1,790, the Tribunal is satisfied that this Appellant receive a section 30 allowance of $1,790. In addition, the Tribunal will direct the Clerk, under section 56 of the Act, to increase the outlet assessments to the lands and roads upstream of the Appellants’ land by that same $1,790 amount.
- John Grimaldi Appeal
The Young Drain traverses approximately 253 metres1 of the Appellant’s property, which is described as a 51-acre woodlot that the Appellant’s family uses to cut firewood and his friends use for hunting. He testified that his property is traversed by two drainage ditches (the Young Drain and the Howie Drain) that he claims have no purpose and hinder the use of the property by restricting his access to the northern portions of his land. His concern was about the impact the drainage ditch will have on reselling his property. In his view the cost related to cleaning and maintaining the ditch depreciated the value of his land.
He did concede that he can access the southern portion of his property from Forkes Road and that he can access the northern parts from the unopened Green Road allowance adjacent to his western property line. He also agreed that he was not prepared to pay for any bridge crossings over the drains that traverse his property.
When asked about the land value, the Appellant conceded that he had no evidence about the land value.
The Appellant also claimed that the drain cleanout would cause the loss of trees and that he should be compensated for losing those trees. The Appellant provided no evidence about the value of any trees that might be felled as part of the proposed drainage works.
The Engineer testified that the Appellant had attended none of the meetings related to the drainage works and that the Appellant had not made a request to combine the Howie Drain ditch and the Young Drain ditch but, had the Appellant raise that issue, the Engineer would have considered it. The Engineer also testified that the Appellant did not ask for any culvert crossings on his property. The Engineer testified that the ditch cleanout will result in an improvement to the Appellant’s property.
The Engineer testified that the proposed drainage works would result in the clearing of some trees; however, the felled trees would be piled for the Appellant to make use of as he saw fit. The Engineer testified that he did provide the Appellant with a section 30 allowance based on $2,000 per hectare for the damage related to felling trees as part of the proposed work.
In terms of the benefit assessment to the Appellant’s property, the Engineer testified that the property had been assessed as agricultural but, in his view, the property has reverted to a bush lot. Accordingly, he recommended that the percentage benefit be reduced from 50% to 30% which would lower the benefit assessment to the Grimaldi property (040-006-133) by $2,160.00, reducing it from $5,400 to $3,240.
The Appellant provided no evidence about his primary concern which was the value of his property or the reduction in value of his property due to the drainage works. At its highest, his evidence was a concern that the drain works or his property’s share of the costs of maintaining the drain would reduce the value of his property. The Appellant’s speculation or concerns about that are not evidence.
Despite the Appellant’s argument that the Young Drain impedes access to his property, he conceded that he was not prepared to pay for culvert crossings and that he used the adjacent road allowance to access the northernmost portions of his land. Those concessions by the Appellant undermined those aspects of his appeal argument.
The Tribunal finds that the proposed drainage work on the Appellants property will cause clearing of some trees but there is no evidence that the Appellant will “lose” the value of those trees. He will have the trees cut and piled as part of the drainage works and he will be free to use or dispose of those trees as he sees fit. If the trees have value, as lumber or firewood, the Appellant will continue to own those trees and can reap that value. In addition, the Tribunal finds that the Engineer’s section 30 allowance of $760.00 relating to the felling of trees as described is fair, reasonable and appropriate.
The Tribunal also accepts the Engineer’s point that the trees that have grown in the existing drain right-of-way could have been removed by the municipality under section 74 of the Act as maintenance and the owner would have had no entitlement to any section 30 allowance.
Based on the Engineer’s concession about the benefit assessment, the Tribunal finds that the Appellant’s property is more properly characterized as a bush lot rather than agricultural land and, therefore, should receive a reduction in its percentage benefit from 50% to 30%, which will reduce the benefit assessment to the Appellant’s property from $5,400 to $3,240. In addition, the Tribunal will direct the Clerk, under section 56 of the Act, to increase the outlet assessments to the lands and roads upstream of the Appellant’s land by that same $2,160 amount.
- Alberto and Raffaela Armenti Appeal
The Young Drain traverses about 200 metres of the Appellants’ property.
The Appellants assert that their proposed compensation under section 30 of the Act is insufficient because the proposed drainage work will destroy over 400 mature hardwood trees, comprising 280 trees with a diameter greater than six inches, and 150 trees with a diameter of less than six inches. The Appellants assert that a reasonable damage award for the destruction of those trees is approximately $58,000.
Dan Armenti testified for his parents, who are the Appellants, about the tree inventory he assembled and working in the forestry industry for 40 years. He submitted an estimate of the “standing” value of the trees as $58,000 or the minimum value as “firewood” to be $48,000.
Dan Armenti acknowledged that he was not a professional forester but that his family had sold trees from the property to sawmills and loggers and his estimates were based on that experience.
The Engineer testified that he did not base his damage allowance on the value of the trees as timber or firewood because the drainage works will result in any trees cut being piled and left for the property owners to use as they see fit, including selling the logs for timber or firewood. The Engineer testified that he provided the Appellants with a section 30 allowance based on $2,000 per hectare for damage to the trees in the specified working space.
The Engineer also testified that if the property owners are not satisfied with the drainage contractor cutting the trees, the property owners can arrange for their own logger to cut down the trees in the working space.
The Engineer also testified that the work on the Armenti property is less extensive as there will only be about 0.22 metres of material excavated from the drain, so there may not be the need of as wide a working space as currently specified. The Engineer also testified that if a property owner wishes to harvest trees from the working space, he would meet with the owner, the contractor and the drainage superintendent to coordinate the required working space.
The Tribunal is not persuaded that the Appellants’ evidence regarding the value of the potential loss of the 400 trees is accurate. There was no expert evidence to support Dan Armenti’s assertions about the quality and value of the trees. There was no independent documentary evidence such as contracts, invoices or estimates to support the timber or firewood values that Dan Armenti used in his loss calculations.
The Tribunal finds that the proposed drainage work on the Appellants’ property will cause some trees to be felled but there is no evidence that the Appellants will “lose” the value of those trees. They will have the trees cut and piled as part of the drainage works and they will be free to use or dispose of those trees as they see fit. If the trees have value, as lumber or firewood, the Appellants will continue to own those trees and can reap that value. In addition, the Tribunal finds that the Engineer’s section 30 allowance of $600.00 relating to the felling of trees as described is fair, reasonable and appropriate.
Finally, the Appellants can harvest the trees in cooperation with the Engineer and the City and its contractor and using loggers of their own choice.
The Tribunal also accepts the Engineer’s point that the trees that have grown in the existing drain right-of-way could have been removed by the municipality under section 74 of the Act as maintenance and the owner would have had no entitlement to any section 30 allowance.
- Edgar Edwards Appeal
The Young Drain traverses approximately 335 metres of the Appellant’s property where Mr. Edwards crops about 115 acres of the 146-acre property. Mr. Edwards testified that the right-of-way area of the Young Drain was re-forested in white pine around 1980, and he conceded that re-forestation was done without notice to the municipality.
Mr. Edwards did not file an appeal within the proper time period but appeared seeking leave to participate. With the consent of the City of Port Colborne and the other Appellants, the Tribunal exercised its discretionary authority to extend the time for Mr. Edwards to appeal the adequacy of the compensation under section 30 of the Act.
Mr. Edwards testified that he did not have an inventory of the trees on his property that would be removed during the proposed drainage work, but he was seeking compensation based on the market value of the trees. Mr. Edwards had no evidence about the market value of the trees.
Mr. Edwards testified that he was also concerned that the proposed work would open a corridor for snowmobile traffic and that this might have an impact on his property value. Mr. Edwards provided no evidence about property values.
Mr. Edwards testified there are several beehives within the drain right-of-way and that he will need advanced notice of any drainage work so he can re-locate the beehives to a safe location.
The Engineer testified that the drainage works would cause felling of trees; however, the felled trees would be piled for the Appellant to make use of as he sees fit. The Engineer testified he did allow the Appellant a section 30 allowance based on $2,480 per hectare related to the felling of trees as part of the drainage maintenance work. Unlike the other bush lots, the Engineer concluded the Appellant’s land to be agricultural and therefore he used a higher rate in developing the section 30 allowance.
The Tribunal is not persuaded by the Appellant’s evidence. There was no expert evidence about the quality and value of the trees. There was no independent documentary evidence such as contracts, invoices or estimates to support any value of the timber or firewood. Similarly, there was no evidence about property values.
The Tribunal finds that the proposed drainage work on the Appellant’s property will cause the felling of some trees, but there is no evidence that the Appellant will “lose” the value of those trees. He will have the trees cut and piled as part of the drainage works and he will be free to use or dispose of those trees as he sees fit. If the trees have value, as lumber or firewood, the Appellant will continue to own those trees and can reap that value. In addition, the Tribunal finds that the Engineer’s section 30 allowance of $1,250.00 relating to the felling of trees as described is fair, reasonable and appropriate.
Finally, the Appellant can harvest the trees in cooperation with the Engineer, the City and its contractor, using a logger of his own choice.
The Tribunal also accepts the Engineer’s point that the trees that have grown in the existing drain right-of-way could have been removed by the municipality under section 74 of the Act as maintenance and the owner would have had no entitlement to any section 30 allowance.
- Sheldon Nease, affected landowner
The Tribunal heard from Mr. Nease that he owns property at the upstream end of the drain that is assessed under the Report. He was not appealing; however, he shared with the Tribunal that he believed people on the drain should be compensated, but not doubly compensated.
The Tribunal appreciated Mr. Nease’s input and given he was not appealing the Report, the Tribunal will make no findings related to Mr. Nease’s submissions.
- Engineer Michael DeVos, P. Eng.
Mr. DeVos advised the Tribunal that, upon reviewing the Report, he determined there are two other properties that were incorrectly assessed as agricultural lands rather than woodlands, like the Grimaldi property, specifically the W. and L. Collard property with roll # 0400-006-099-02, and the J. Post and S. Robb property with roll # 040-006-131-00. Mr. DeVos requested the Tribunal to order the lowering of the benefit assessments of these two properties as follows: the Collard property’s percentage benefit to be reduced to 45% from 50%, thereby reducing the assessment by $719 from $7190 to $6471; and the Post and Robb property’s percentage benefit to be reduced to 30% from 50%, thereby reducing the assessment by $2236 from $5590 to $3354. Upon questioning by the Tribunal, the Port Colborne Drainage Superintendent agreed with these assessment changes.
Order of the Tribunal
In light of the above findings, the Tribunal hereby makes the following Order.
- The appeal of Dianna Kit Mete and Lois Kit is allowed in part, in respect of property roll # 130 00421100 as follows:
a. The allowance schedule for section 30 will be revised to include an award of $1,790.00; and
b. In accordance with section 56, the Clerk is directed to increase the outlet assessments to the lands and roads upstream of property roll # 130 00421100 by $1,790.00 pro rata.
- The appeal of John Grimaldi is allowed in part, in respect of property roll # 040 00613300 as follows:
a. The benefit assessment for the property will be reduced from $5,400.00 to $3,240.00; and
b. In accordance with section 56, the Clerk is directed to increase the outlet assessments to the lands and roads upstream of property roll # 040 00613300 by $2,160.00 pro rata.
The appeal of Alberto and Raffaela Armenti in respect of property roll # 140 00102600 is dismissed.
The appeal of Edgar Edwards in respect of property roll # 140 00102900 is dismissed.
The Engineer is directed to meet with each of the Appellants prior to commencing work under the Report to coordinate the working space and to coordinate the opportunity for the Appellants to hire their own loggers to remove any trees within the working space and to coordinate the removal of the beehives on the Edwards property.
The benefit assessment to the W. and L. Collard property with roll #040-006-09902 will be reduced from $7,190.00 to $6,471.00; and, in accordance with section 56, the Clerk is directed to increase the outlet assessments to the lands and roads upstream of said property by $719.00 pro rata.
The benefit assessment to the J. Post and S. Robb property with roll #040-006-13100 will be reduced from $5,590.00 to $3,354.00; and, in accordance with section 56, the Clerk is directed to increase the outlet assessments to the lands and roads upstream of said property by $2,236.00 pro rata.
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 may include the Engineer’s fees and expenses for preparing the Report, as well as the Engineer’s fees and expenses for attending and participating in the hearing.
There shall be no other Order as to costs and all parties are responsible for their own costs.
Dated at Collingwood, Ontario this 27^th^ day of February, 2019.