Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West, 2nd Floor NW
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West, 2e 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:
Andrew Pluhar and Fausto Mazzuto The Town of Fort Erie
South Tributary Municipal Drain 2021AFRAAT8
STATUTE:
Drainage Act
HEARING:
April 29, 2021
DATE OF DECISION:
May 07, 2021
007SouthTributary20
NEUTRAL CITATION:
2021 ONAFRAAT 8
FILE NO.: 007SouthTributary20
DATE: 2021/05/07
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 Andrew Pluhar of St. Catharines, Ontario under Section 48 of the Drainage Act, and Fausto Mazzuto of Ridgeway, Ontario under Sections 48 and 54 of the Drainage Act, with respect to the South Tributary Municipal Drain in the Town of Fort Erie,
AND IN THE MATTER OF an electronic hearing held pursuant to Rule 10 of the Rules of Procedure of the Tribunal,
BETWEEN:
Andrew Pluhar and Fausto Mazzuto Appellants
– and –
The Town of Fort Erie Respondent
Self-Represented
Self-Represented
HEARD: April 29, 2021
Before: Harold McNeely, Vice-Chair; Andrew McBride, Vice-Chair; and David Stevens, Member.
Appearances:
Fausto Mazzuto, Appellant, assisted by his son Shawn Mazzuto
Andrew Pluhar, Appellant, assisted by his son Stephen Pluhar
Shawn Mazzuto, witness for the Appellant Fausto Mazzuto
Margarete Taddeo, Records Management Assistant for the Town of Fort Erie
David Maiden, Drainage Superintendent for the Town of Fort Erie
Neal Morris, P. Eng., of K. Smart Associates Limited, the Engineer who wrote the Report
TRIBUNAL DECISION
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
2After receiving a Petition signed by the road authority for the Town of Fort Erie (the “Town”) and the road authority for the Regional Municipality of Niagara, in accordance with section 4 (1) (c) of the Drainage Act (the “Act”), the Town appointed Urban & Environmental Engineering Inc. (“UEM”) in August 2010 to prepare a Report under the Act for a new drain to be known as the South Tributary Drain, being the south branch of Beaver Creek. As UEM could not finish the Report, UEM hired K. Smart Associates Limited to complete the appointed work and Mr. Neal Morris, P. Eng., became the engineer of record. Mr. Morris completed the Report on November 8, 2019.
3The Report proposes an open channel drain extending for 6,840 metres with 5,462m of existing channel incorporation, 355m of channel realignment and 1,023m of channel cleanout, plus one large access lane crossing replacement, erosion control, berm construction, and one culvert cleanout. The total estimated cost of the project is $397,175. The watershed area is 1,121 hectares or 2,769 acres and includes designated wetlands and floodplain. Approximately 840 properties are involved including agricultural, woodland, and urban land uses.
4After the adoption of the provisional bylaw approving the project, Mr. Andrew Pluhar submitted an appeal to the Tribunal under sections 48 (1) (c) and (d) of the Act stating that, since his property could not be developed, he should not have to pay toward the Drain.
5Mr. Fausto Mazzuto also submitted an appeal to the Tribunal under section 48 (1) (a) and (b) of the Act stating that, since his property drains to the south, it should be completely removed from the assessed drainage area.
6After an appeal to the Court of Revision that his property should be completely removed from the assessed drainage area was denied, Mr. Fausto Mazzuto submitted an appeal to the Tribunal in accordance with section 54 (1) of the Act.
Evidence
7Mr. Morris presented his evidence and introduced his Engineer’s Report as Exhibit #4, a reference aerial photograph topographic plan of the entire watershed with one metre contours as Exhibit #5, and a reference aerial photograph topographic plan of the south part of the watershed with half metre contours as Exhibit #6. Mr. Morris briefly explained the work that is proposed to be done on the existing channel and mentioned that the main objective of the project is to provide proper outlet for many of the roadside ditches in the drainage area. He also mentioned that the Allowances are significant, totalling $24,200. When asked to explain how he calculated the assessments, Mr. Morris testified that they were based on a modified Todgham method. The drain was divided into intervals or “Reaches”, nine in total. He then calculated the costs associated with each Reach, and those costs were then assessed as Benefit and Direct Outlet to the lands and roads within the Reach, and the balance was assessed as Outlet Liability to all the upstream lands and roads that drain through that Reach.
8Regarding the Pluhar property, which is 31.02 hectares or 76.6 acres in area, Mr. Morris advised that all of it is within the drainage area and it contributes flow to Reaches 4, 5, 6, 7, and 8. Mr. Morris applied a Land Use Factor (“LUF”) of 0.5 to almost all of it, as most of it is forested, reducing the equivalent area to 16.37 hectares. The property was assessed minimal amounts for the proposed work in Reaches 4, 5, 6, and 7 and $2026 for Reach 8, due to the large new crossing constructed at the downstream end of the drain, for a total assessment of $2083.
9When asked to give evidence concerning his Appeal, Mr. Pluhar advised that he has owned this property since 1974 but has never been able to develop it due to the zoning, and he cannot see how the property will benefit from the proposed drainage works. Accordingly, he has the property listed for sale. He asked when the construction work on the drain is expected to commence.
10Regarding the Mazzuto Appeals, Mr. Morris advised that he determined that the north fields of the Mazzuto properties, being 4337 Michener Road, the 8.16-hectare easterly parcel, and 4471 Michener Road, the 3.85-hectare westerly parcel, drain to the south roadside ditch along Michener Road and, therefore, should be included in the assessed drainage area of this proposed Drain. He also noted that he observed a slight ridge running east-west through these properties, upon which several buildings are located, and that the land seemed to slope slightly toward the Road, or north, away from this ridge. Accordingly, he included both parcels in the drainage area, applying a LUF of 1.0, as they are agricultural land. Since these properties are at the extreme upstream end of the drainage area, they are assessed for Outlet Liability in every Reach, except #9, resulting in an assessment of $2692 for #4337 and $1270 for #4471, or a total of $3962.
11When asked to give evidence regarding the Mazzuto Appeal, Mr. Shawn Mazzuto entered Exhibit #2 being a 16-page document that included two pages of typewritten text, two half-page sketch drainage plans of the Mazzuto properties and twenty-five photographs of the assessed areas, most with captions. The subject properties have been owned by Mr. F. Mazzuto since 1978. During all or part of this 42-year period, Mr. Mazzuto has farmed these lands.
12The previous owner of the properties designed and installed a drainage system for the north portions of these properties that includes three outlets through the slight ridge mentioned by Mr. Morris, two utilizing culverts and one, the most easterly, being a ditch. Furthermore, low runs were graded through these fields directing the surface water to these outlets and this entire system has been properly maintained by the Mazzuto family and continues to function very well when not flooded by overflow from the roadside ditch. Exhibit #2 fully documents and illustrates this drainage system. Accordingly, since the surface water from their lands drains to the south and does not use the Michener Road ditch for outlet, Mr. Mazzuto requests that his properties be completely removed from the drainage area of the proposed South Tributary Drain.
13In response to this evidence and request, Mr. Morris pointed out that there is another municipal drain, known as the Bay Beach Area Drain, located south of the Mazzuto properties that the subject lands will likely be included in if removed from this drainage area, as will the balance of the Mazzuto properties south of the ridge.
Decision
14After due consideration of the Pluhar Appeal, the Tribunal finds that there was no evidence provided to support any changes to the Engineer’s Report. Accordingly, the Pluhar Appeal is hereby dismissed.
15After due consideration of the Mazzuto Appeal, the Tribunal finds the evidence of Messrs. Mazzuto to be credible and well supported by their Exhibit #2 and the topographic mapping provided by the Engineer.
16Accordingly, the Tribunal hereby orders as follows:
(a) the Mazzuto properties, specifically 4437 Michener Road with Roll No. 1755700, and 4471 Michener Road with Roll No. 1755800, be removed from the drainage area and the Schedule of Assessments of the South Tributary Drain;
(b) the $3,962 that was assessed to these two properties be assessed to Michener Road and that, in accordance with section 56 of the Act, the Town Clerk shall amend Assessment Schedules A and B accordingly;
(c) the Town Clerk shall insure that the ‘official copies’ of the plans of the drainage area are amended to remove 4437 Michener Road with Roll No. 1755700, and 4471 Michener Road with Roll No. 1755800 from the assessed drainage area;
(d) the non-administrative costs of the Municipality incurred with respect to these appeals shall form part of the cost of the drainage works; and
(e) there shall be no other Order as to costs and all parties shall be responsible for their own costs.
Dated at Ottawa, Ontario this 6th day of May 2021.
Released: May 7, 2021