Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West, 2^nd^ Floor NW

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West, 2^e^ étage NW

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:

Gina And Francesco Storino The Town of Amherstburg

John Parks Drain No. 1 2021AFRAAT7

STATUTE:

Drainage Act

HEARING:

April 07, 2021

DATE OF DECISION:

April 30, 2021

015JohnParks19

NEUTRAL CITATION:

2021 ONAFRAAT 7

FILE NO.: 015JohnParks19

DATE: 2021/04/30

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 Gina and Francesco Storino of Amherstburg, Ontario under Sections 48 and 54 of the Drainage Act, with respect to the John Parks Drain No. 1 in the Town of Amherstburg.

AND IN THE MATTER OF an electronic hearing held pursuant to Rule 10 of the Tribunal’s Rules of Procedure.

BETWEEN:

Gina and Francesco Storino Appellants

– and –

The Town of Amherstburg Respondent

Self-represented

Represented by Shane McVitty, Drainage Superintendent

HEARD: April 7, 2021

Before: Christine Greydanus, Vice-Chair; Edward Dries, Vice-Chair; Sarah Judd, Member.

Appearances:

Gina Storino, Appellant Francesco Storino, Appellant Paula Parker, Clerk Shane McVitty, Drainage Superintendent Michael Gerrits, P. Eng., engineer who wrote the Report

DECISION OF THE TRIBUNAL

Preliminary Matters

1Prior to beginning this hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report parties to this hearing. The Clerk filed an affidavit of service as proof that all parties have been served notice of this hearing.

Background

2The drainage report was initiated when the Town of Amherstburg received concerns relating to the deterioration and safety of failing sections of the covered portion of the John Parks No. 1 Drain and appointed an Engineer under Section 78 of the Drainage Act to prepare a report to address the failure.

3The Engineer received instruction from the Town of Amherstburg with regard to extending the drain to the Detroit River, replacing an existing lawn enclosure across two properties, and incorporating a lawn enclosure across a third property which was completed outside of the Drainage Act. The lawn enclosures are located on the properties with the Area Roll Numbers (ARN) ending in 600-07100 (F. & G. Storino), 600-07200 (F. & G. Storino) and 600-70201 (2627884 Ontario Inc.) in the Town of Amherstburg (former geographic Township of Malden).

4The John Parks No. 1 Drain predates a 1948 report prepared by C. Armstrong, which report included incorporating an existing ditch complete with improvements. A 1976 report prepared by W. Setterington included improvements to both the open and closed, drain. That report assessed all costs associated with the enclosure between Station 0+020 and Station 0+088 to the landowner benefiting from the enclosure.

5In 1999, L. Zarlenga, P. Eng. of Bruce Crozier Engineering Inc., prepared a preliminary report that included maintenance recommendations for the existing drain. The report also commented on extending the existing enclosure across the F. & G. Storino property between Station 0+088 and Station 0+132. The report stated that extending the enclosure across the F. & G. Storino property would need to be completed under a new Engineer’s report under the Drainage Act.

6The enclosure work was extended across the F. & G. Storino property (ARN 600-07100) privately outside of the parameters of the Drainage Act in 1999 and spring of 2000. The enclosure was not made part of the drain at the time of the work.

7Outlet for the drain is governed by the Detroit River, causing standing water in the drain when river water levels are high. In order to prevent standing water, a pump system would be required.

Issues:

1. Should the drainage works as set out in the Engineer’s Report be modified or altered?

2. Should the Appellants’ assessments be reduced?

Evidence

Michael Gerrits, P. Eng., Responsible for preparing the Engineer’s Report – s. 48(1)

8Mr. Gerrits gave an overview of the project. He provided pictures of the limited space where the enclosed drain is located between the Storino house on property ARN 600-07200 (F. & G. Storino), and the multi-dwelling unit on property ARN 600-07100 (F. & G. Storino), as well as pictures of the Storino driveway and landscaping that will be disturbed in order to carry out the drainage works.

9Mr. Gerrits testified that the Storinos had offered alternatives to the recommended work such as; pipe lining (slip covering) the current enclosure, moving the drain around the house, or reverting to an open drain from Station 0+048 and 0+088 along the pre-enclosure alignment.

10Mr. Gerrits reported that the drain was already enclosed in 1978 when the Storinos purchased the land. They then built a house and had a septic system installed. The septic system was reportedly located close to the drain; however, the exact whereabouts of the whole septic system has not been disclosed to Mr. Gerrits.

11Mr. Gerrits, in the Report under “Specifications of Work”, requires the contractor to locate the existing drain and confirm it is not located within an existing septic weeping bed. The report provides that the contractor may install the proposed pipe along a different alignment to maneuver around existing septic bed, masonry entrance features and adjacent to existing buildings.

12Mr. Gerrits reported he had visited the Storino property multiple times during the design of the drain to ensure the most appropriate solution was presented in the Report.

13Mr. Gerrits stated that he had discussed with the Appellants and has reviewed the pre-enclosure alignment and has decided to proceed along the existing enclosure alignment. Returning the drain to its former open configuration and following the pre-enclosure alignment as suggested by the Appellants is neither practical nor possible for several reasons~~.~~ There is not space to safely install an open drain next to the house, and it would be more expensive than the proposal in the Report. Further, in the past, the Storinos have been ardently opposed to open drains claiming them to be difficult to maintain and make attractive, difficult to maintain due to ongoing erosion, unbearable due to the stench they create, a breeding ground for mosquitos and hazardous for the surrounding neighbours.

14With regards to slip covering or lining a pipe, Mr. Gerrits testified that it can be considered when a pipe is not deformed or has deflections either horizontally or vertically. Further, the lining needs to be no less than 5% smaller than the inside diameter of the host pipe. In this case, the exact alignment of the pipe is unknown. There is a possibility that the existing pipe is deformed and there is water laying in the pipe. All of these contribute to making the lining of the pipe not a viable solution for repair of this drain.

15The Report recommends that the following work be carried out:

1. Remove and replace the existing headwall at the drain outlet at Station 0+000;

2. Remove and replace the closed drain between Station 0+020 and 0+088 across ARN 600-07200 (F. & G. Storino) and ARN 600-70201 (2627884 Ontario Inc.) that was installed in 1976 under the W. Setterington report complete with reconnecting the existing catch basin, restoration and the installation of new catch basins;

3. Update the Maintenance Schedule; and

4. Incorporate the 1,030mm x 740mm corrugated steel pipe on the F. & G. Storino property (ARN 600-07100) between Station 0+088 and Station 0+132 under this report. Once incorporated, the existing enclosure will then become part of the drain.

Mr. Gerrits for the Respondent - s. 54

16Mr. Gerrits testified that the John Parks Drain No. 1 has been in existence since 1948. In 1976, the owner enclosed and realigned the drain that goes across the Storino land. The property was subdivided into three properties ARN 600-07201, 600-7200 & 600-07100.

17Mr. Gerrits stated that at the site meeting, numerous phone conversations, the Meeting to Consider, and the Court of Revision, landowners were made aware that the majority of the enclosure cost would be assessed against the lands benefiting from the enclosure. Upstream landowners will receive an outlet assessment for the reduced maintenance cost that will incur as a result of the enclosure.

18Mr. Gerrits stated that the upstream landowners were assessed approximately 4% of the cost of the enclosure, which reflects the reduced maintenance costs of a closed drain.

19Mr. Gerrits reported that the Storinos would prefer the assessment be based on an equalized rate per acre of land in the drainage area or an equalized assessment against all individual properties within the watershed. The upstream landowners do not require an enclosure and therefore receive no benefit from the enclosure. In this case, the enclosure makes the lot developable by controlling the route the water takes across the property, and it also increases the value of the lands by not having an open channel on the lands. The Storinos privately enclosed a section of the John Parks No. 1 on their lands ending with ARN 600-07100 because they no longer wanted an open drain on their property. The County of Essex received a benefit assessment for a portion of the drain that parallels Front Road South as they have a direct connection to the drain and no longer have a roadside ditch.

20Mr. Gerrits stated that the Storinos do not feel the drain assessment reflects disruption to their lands. The proposed drain follows the existing alignment, minimizing the effects construction will have on adjacent properties. The contractor will be required to work within the drain’s working corridor and all disturbed areas will be returned to their original condition or better. Items such as relaying the paving stones were assessed back to the Storinos as a special benefit.

21Mr. Gerrits further stated that the Storinos do not feel the assessment in the Report reflect the benefit upstream landowners receive for passing water through their lands. Upstream landowners are assessed for outlet liability on this drain.

22Mr. Gerrits provided a detailed breakdown of how costs were allocated and assessed, specifying for example, cost provisions for access to the Storino property, removal and installation of new tile by section of the drain where the work is to be completed, and cost of lawn enclosure that does not serve as access.

Gina Storino – s.48(1) Appeal and s. 54(1)

23Ms. Storino stated that she and Mr. Storino purchased the properties in 1978, at which time the drain already existed and was partially covered.

24Ms. Storino testified that in 1997, the drain was deteriorating and there was effluent in the uncovered portion of the drain on one of her properties. Ms. Storino stated that they took their concerns to the municipality at that time.

25Ms. Storino testified that on November 4, 1999, Lou Zarlenga, P. Eng., of Bruce D. Crozier Engineering Inc. performed a site inspection on the John Parks No. 1 Drain and met with the Storinos and that Mr. Zarlenga reported back to the Town of Amherstburg and a copy of his letter was sent to the Storinos. This report found the water levels in the Detroit River to be below the outlet pipe; the water was not backing up in the drain as it had been in 1997; water was ponding in the enclosed portion of the pipe; there was a strong smell of septic in the open end of the upstream pipe at the north end of the Storino property; and there was brush present on the drain banks on the open portion of the drain.

26Ms. Storino reported that on January 17, 2000, Lou Zarlenga sent the Town the account for work completed to date on the project and alleged that the Town of Amherstburg paid this account.

27Ms. Storino testified that she and Mr. Storino decided to go ahead in 1999 and spring of 2000 to enclose the open portion of the drain on their land. Ms. Storino testified that the work was done in accordance with the engineered plan that had been prepared.

28Ms. Storino stated that the municipality approved the work on May 5, 2000 and that the enclosure was inspected by Lou Zarlenga, P. Eng. and Bob Crawford, Town Drainage Superintendent and alleged that the enclosure work was completed according to the engineer’s report.

29Ms. Storino stated that the Town and landowners on the drain should have shared in the cost of the enclosure in 2000 and as a good municipal neighbour, the Town should have distributed the cost of enclosing the open portion of the drain amongst the landowners upstream on the drain.

30Ms. Storino alleged that the highwater levels in the Detroit river contributed to the problems and that the upstream landowners benefited from having their water coming through her land and that they should pay more of the cost of repairing the drain at this time.

31Ms. Storino stated the drain has been deteriorating and has needed repair for many years. Ms. Storino alleged that the drain has not been maintained over the past forty years, and that is why the drain is currently in disrepair and failing. Ms. Storino testified the owner of the property adjacent on the south of the Storino property trenched and added a catch basin to remove water from his property and alleged that this has attributed to the failure of the drain.

32Ms. Storino testified that her driveway has a sink hole in it, and there is a huge hole in the lawn in front of her house.

33Ms. Storino stated she is unhappy with the destruction that will take place on their two properties to the driveways, landscapes and septic beds, if the drain repair work is carried out as proposed in the Engineer’s Report.

34Ms. Storino stated that she believes she has been assessed too high for the drainage works and that it is unfair. Ms. Storino stated that the upstream property owners should pay a higher percentage of cost of the repairs, as they are receiving an outlet for their water through the Storino properties.

35Ms. Storino is asking for a reduction of her combined $66,202 assessment on her two properties and that an alternate solution than what is provided in the Report be found for repairing the drain.

36In examination, Ms. Storino admitted that she did not seek any third-party professional advice as to the structural condition of the enclosure on her property, the potential for realignment of the pipe on her property, alternative pipe replacement options, or the fairness of the assessment as shown in the Report.

Findings and Analysis

Issue 1 – s. 48 Appeal

37The section of the drain in the Report, now more than 40 years old, is failing and has been for the past three years. This fact is not in dispute. The Tribunal accepts as fact the enclosed pipe between Station 0+020 and 0+088 has reached the end of its life, has failed and needs replacement.

38Much of the Appellants’ evidence, both documentary and verbal, related to issues and events that occurred prior to the commencement of this project under the Drainage Act. The evidence does not pertain to the issues brought before the Tribunal, and as a result, little weight was given to this evidence.

39The alternative solutions to the replacement of the enclosed pipe (lining the pipe, rerouting the enclosure drain or uncovering the drain and returning it to its original location) were canvassed and weighed.

40The Tribunal accepts the Engineer’s evidence that the alternative options were either not viable, more expensive or of similar cost.

41Accordingly, the Section 48 Appeals of the Appellants, Francesco and Gina Storino, are dismissed.

Issue 2 - s. 54 Appeal

42With regard to the appeal under section 54 of the Act, the total estimated cost of the drainage works in the report is $145,260.

43Benefit assessed to the Storinos is $8,197 (6%) on ARN 600-07200.

44Section 22 of the Act provides for the assessment of benefit. Section 1 defines “benefit” to mean

the advantages to any lands, roads, buildings or other structures from the construction, improvement, repair or maintenance of a drainage works such as will result in a higher market value or increased crop production or improved appearance or better control of surface or subsurface water, or any other advantages relating to the betterment of lands, roads, buildings or other structures.

45The Storinos’ properties will benefit from the repair of this drain by the better control of surface flows through the properties, an improved appearance, and higher market value.

46Special Benefit assessed to the Storinos is $41,818 (29%) on ARN 600-07200 and $15,312 (11%) on ARN 600-07100.

47Section 24 of the Act provides for the assessment of special benefit. Section 1 of the Act defines “special benefit” to mean any additional work or feature included in the construction, repair or improvement of a drainage works that has no effect on the functioning of the drainage works.

48The total outlet assessment on the drain is $43,014 (30%).

49Once again, the Storino properties will receive a special benefit from having the driveway and yard repaired, with the costs associated to the repairs to the driveway, landscape and lawn having no effect on the function of the drainage works.

50The Tribunal accepts the Engineer, in his Report, has fairly assessed the Appellants, the other landowners and roads on the drain as per the Drainage Act.

51Accordingly, the Section 54 Appeals of the Appellants, Francesco and Gina Storino are dismissed.

ORDER OF THE TRIBUNAL

The Tribunal Orders that:

1The Appeals by Francesco and Gina Storino under Sections 48(1) and 54(1) of the Drainage Act are denied.

2The non-administrative costs of the Town for these Appeals shall form part of the cost of the drainage works.

3There shall be no other costs and the parties are responsible for their own costs.