Ontario Land Tribunal
Issue Date: October 14, 2022
Case No(s).: OLT-21-001920
Proceeding Commenced Under subsection 8(1) of Ontario Regulation 586/06 of the Municipal Act, 2001, S.O. 2001, c. 25
Referred by: City of Windsor
Objector: Barinderjeet and Barinder Bhangu
Objector: Nazzareno and Rosa Conte
Objector: Gloria Denomey
Objector: Angela Drouillard; and others
Subject: Local Improvements
Description: To authorize the construction of a sanitary sewer and private drain connection as a Local Improvement
Reference Number: 151-2020
Property Address: Baseline Road from 7th-8th Concession Road
Municipality: Windsor/Essex
OLT Case No.: OLT-21-001920
OLT Lead Case No.: OLT-21-001920
OLT Case Name: Bhangu v. Windsor (City)
Heard: September 28, 2022 by video hearing
Appearances
Parties City of Windsor
Counsel Wira Vendrasco
Memorandum of Oral Decision Delivered by T. Prevedel on September 28, 2022, and Order of the Tribunal
Introduction
1The matter before the Tribunal is an appeal pursuant to s. (1) of Ontario regulation 586/06 of the Municipal Act to authorize the construction of a sanitary sewer and private drain connections as a local improvement.
2The City's Application is for approval by the Tribunal of By-law No.151-2020, being a by-law to authorize the construction of a sanitary sewer and private drain connections on Baseline Road from 7th Concession Road to 8th Concession Road in the City of Windsor ("City") as a local improvement. This was entered as Exhibit 1 to the proceedings.
Background and Area Context
3Baseline Road is in the southeast part of the City, in the former Township of Sandwich South in Essex County. About 2,600 hectares of land were transferred from the Town of Tecumseh and County of Essex to the City in 2002. The transferred lands are referred to as the "Sandwich South Employment Lands" or the "Annexed Lands". The Annexed Lands are primarily rural but include some developed residential streets (including Baseline Road, Ray Road and Joy Road).
4Baseline Road from 7th Concession Road to 8th Concession Road consists of a rural cross section, watermain and hydro services. Some localized storm sewers exist, but the majority of the street's stormwater runoff is directed to swales along Baseline Road and the Baseline Municipal Drain, which runs along the south limit of the properties on the south side of Baseline Road. Baseline Road is not currently serviced by municipal sanitary sewers. The properties are serviced by private septic systems. Although Baseline Road is paved, there are no streetlights, sidewalks, or curb and gutter.
5The 2006 Sanitary Sewer Servicing Study for the Annexed Lands and the 2014 Addendum to the Sanitary Sewer Servicing Study for the Annexed Lands identified that Baseline Road is to be serviced by the Little River Pollution Control Plant located to the northeast.
6In 2011, the City of Windsor constructed a trunk sanitary sewer south along Lauzon Parkway (which lies east of the subject section of Baseline Road), then west along County Road 42 to 8th Concession Road and south along 8th Concession Road to Highway 401 as part of an overall trunk sanitary sewer system to service the Annexed Lands. Funding in the amount of 20.27 million for this project came from the federal and provincial governments through the Infrastructure Stimulus Fund. This trunk sanitary sewer was designed to receive the sanitary flows from Baseline Road and other lands to the east and west of 8th Concession Road.
The Hearing
7The City provided the Tribunal in advance of the Hearing, with a sworn Affidavit from Stacey McGuire, a registered Professional Engineer who is currently the Project Administrator in the Engineering Department of the City's Office of the City Engineer.
8Ms. McGuire attended the Hearing and was qualified by the Tribunal to provide expert evidence with respect to servicing and infrastructure.
9Ms. McGuire provided the Tribunal, in her written Affidavit and oral testimony, a thorough and comprehensive overview detailing not only the engineering and environmental justification for the proposed construction of the sanitary sewer on Baseline Road, but also the extensive outreach and public consultation which took place beginning on January 6, 2020, up until the time of the City's Application to the Tribunal for approval of its By-Law No. 121-2020.
10She explained that the subject section of Baseline Road, from 7th Concession Road to 8th Concession Road, was identified as being a high priority for construction of a sanitary sewer for the following reasons:
- No existing sanitary sewer;
- Meets Council's policy to remove residents and businesses from septic systems which pollute waterways;
- High level of environmental benefit due to the number of septic systems that could be decommissioned following the work;
- Suitable sanitary sewer outlet without the need to oversize sewers;
- Reduction in potential for contamination of the Baseline Municipal Drain due to overflows from aging and failing septic systems; and
- Development opportunities through property severances, and development of vacant lands, including the parcel at the corner of 7th Concession Road and Baseline Road, which was recently rezoned for commercial uses.
11Ms. McGuire submitted that the construction of the local improvement work on Baseline Road would result in the decommissioning of approximately 65 septic systems that are currently in close proximity to the Baseline Municipal Drain, which is an open linear stormwater management facility that outlets to the Little River. The Little River is a major linear stormwater drainage facility with a catchment area covering approximately half of the City. The Little River runs from south to north through the east side of the City and outlets to the Detroit River near Lake St. Clair. The Detroit River forms part of the Great Lakes stormwater system and the area of the Detroit River adjacent to the Little River outlet has been designated as an environmentally sensitive area.
12She explained that septic systems cause environmental contamination to watercourses by delivering health endangering contaminants, including bacteria, viruses, parasites and nitrates through overflows and through seepage into the groundwater and into the storm systems such as the Baseline Municipal Drain and Little River. She further advised that reducing environmental contamination through the proper treatment of sanitary sewage is a provincial policy and therefore, a priority for the City. The City Council preferred method to remove properties from septic systems and provide an appropriate sanitary outlet is through the local improvement process.
13Ms. McGuire explained that a number of objections and a petition was received by the City as a result of its intent to pass the Local Improvement By-Law. All of the written objections were included as appendices to Ms. McGuire's Affidavit.
The Objectors
14Five Objectors attended the Hearing:
- Gary Barbesin
- Bob Fletcher
- Keith Riberdy
- Ali Mansour, and
- Angie Lamarre
15Mr. Barbesin introduced William Tape, a Principal and Senior Engineer with Haddad Morgan and Associates Ltd., to provide technical evidence at the Hearing. However, the Tribunal advised Mr. Tape that, as per the Tribunal's Rules of Practice and Procedure, no Witness Statement had been submitted in advance of the Hearing. As a result, he was not permitted to provide any expert testimony.
16Mr. Barbesin also advised the Tribunal that Greg Drouillard, one of the listed Objectors, was not able to attend the Hearing in person due to medical reasons.
Each of the Objectors was given an opportunity to address the Tribunal with their concerns.
County Road 42 Properties:
17Two of the Objectors, namely Messrs. Barbesin and Mansour, represent commercial properties which front onto County Road 42 and back onto Baseline Road. They both expressed concerns regarding the additional length and cost to install a Private Drain Connection to Baseline Road, rather than directly to County Road 42.
18Both Messrs. Barbesin and Mansour expressed their opinion that a sanitary sewer would eventually be constructed along County Road 42 and it would make more sense to wait until that time to make a shorter connection to that future sewer.
19Both of the above Objectors also expressed concerns regarding existing obstacles on their respective properties (such as paved areas and loading docks) in the path from the septic system to the proposed Baseline Road sewer.
20The Tribunal notes that, although Mr. Drouillard was not able to attend the meeting, his property is immediately adjacent to Mr. Barbesin's with a shared driveway and his concerns are identical to the ones stated above.
Baseline Road Properties:
21Mr. Fletcher and Ms. Lamarre own single family residential properties on Baseline Road. Both Mr. Fletcher and Ms. Lamarre addressed the Tribunal on behalf of their neighbours and other family members regarding their concerns and the financial impact they would incur as a result of the proposed Local Improvement By-Law.
22The main issues can be distilled as follows:
- Cost of the work;
- Recent replacement of the existing septic system (at 3530 Baseline Road and 3716 Baseline Road); and
- Mandatory decommissioning of existing septic systems and connection to the new sewer, including related costs.
City's Response to Concerns and Objections
23Ms. McGuire provided the Tribunal with a comprehensive review of actions that the City Administration undertook, with the support of Council, to assist in addressing and alleviating some of the resident concerns that were voiced in the objection letters and petitions.
24She submitted that, based on the objections received, the City undertook a review of the proposed Baseline Local Improvement to determine the impacts of the proposed local improvement work on the various properties. This review also considered whether or not any other procedural changes could be made to address the objections raised. As a result of the review, five substantial changes were developed and subsequently recommended to Council to address the concerns of the Objectors. These changes are described as follows:
1. Revision to 2019 Local Improvement Plan ("LIP")
25The City considered a change to the 2019 LIP so that the cost of the sanitary sewer construction would go from 100% of the cost of the actual size of the sewer pipe to the cost for a uniform 250 millimetres ("mm") diameter Poly Vinyl Chloride ("PVC") pipe. This cost was to be applied despite the fact that the actual sewer pipe could be larger and cost more. The 250 mm diameter PVC pipe is the minimum standard sized sewer pipe allowed by the City for local sanitary sewers. Furthermore, restoration costs of the sewer trench would now exclude the cost of hard surface restoration (such as road pavement, sidewalks and driveways). These changes were intended to ensure a reduced and equitable charge to the property owners.
26For the Baseline Local Improvement, this meant a lower overall assessment cost from $450.81 per linear metre frontage under the 2019 LIP to $244.21 per linear metre frontage. This represents a decrease of 46% in the assessment cost.
27All additional costs for the local improvement work resulting from the above changes would be at the expense of the City.
2. Amend Schedule "A" of Property Standards By-Law for Decommissioning Septic Systems
28Ms. McGuire explained that the City's Property Standards By-Law No. 9-2019 requires that when sanitary sewers become available in an area serviced by septic systems, all sewage is to be discharged directly into the municipal sewage system.
29She further explained that the provisions of By-law No. 151-2020 would result in the property owners being required to comply with Property Standards By-law No. 9-2019, decommission their existing septic systems, and connect to the new sanitary sewer no later than one year from the receipt of notice by the City Engineer that the sanitary sewer is complete and available for connection.
30A search of permit records in the Engineering Department found that four of the 65 properties on Baseline Road had replaced their septic systems with new Class 4 leaching bed systems as permitted by the Ontario Building Code. These properties are 3149, 3530, 3716 and 3965 Baseline Road. Acknowledging the expense of recent septic system replacements, the City was prepared to recommend to Council that these properties be granted a three year extension to connect to the available sewer once constructed and that Property Standards By-law No. 9-2019 be amended to reflect this.
3. Implement Option for a Private Local Improvement
31Ms. McGuire submitted that, as part of the review of the property owner objections to the Baseline Local Improvement, the City also reviewed the costs associated with the decommissioning of existing septic systems.
32She explained that in addition to the decommissioning of septic tanks, treatment units and leaching beds or dry wells on private property, the property owners would be required to install a Private Drain Connection ("PDC") from the new clean-out at the property line to the home and make any internal plumbing changes that may be required within the property.
33Since the front yard setback of the lots on Baseline Road vary from 20-40 metres ("m"), the costs for the PDC on private property will most likely be higher than for conventional subdivision lots, which usually have front yard setbacks of 6 m.
34Acknowledging the considerable costs of the local improvement work plus the decommissioning of the septic system and re-routing of piping on private property, the City was prepared to recommend to Council the implementation of the private local improvement provisions of Ontario Regulation ("O. Reg.") 586/06. This allows 100% of the cost of the infrastructure on private property to be assessed and paid for by way of private local improvement charges under O. Reg. 586/06.
35Ms. McGuire further explained that, based on her discussions with the City's Deputy Treasurer, this alternative approach of using the private local improvement process would provide more attractive interest rates and borrowing terms for homeowners than they might otherwise be able to obtain. The upfront capital costs for the infrastructure on private property can be repaid over a period of time that is flexible and tailored to each individual homeowner. The City facilitates the collection of annual payments from the property owners by way of a private local improvement charge, which is added to the annual property tax bill. The charge would be supported through a private local improvement charges by-law and agreements with consenting property owners.
4. Extension of Repayment Terms to 20 Years
36Ms. McGuire submitted that on April 27, 2020, Council passed CR136/2020 which states:
That a 20-year payment option for property owners to repay special charges for drainage and local improvements be implemented at interest rates deemed appropriate by administration.
37She submitted that, with this additional Council resolution, property owners would be offered the option to extend the repayment period up to 20 years. This would be available for both the municipal local improvement charges and the private local improvement charges. Therefore, property owners would have the option of paying the municipal local improvement and the private local improvement in one lump sum payment, in 10 or 20 equal annual instalments, or in any combination of these options.
5. Further Concessions
38Ms. McGuire submitted to the Tribunal that the City also offered two additional concessions resulting from oral and written submissions from property owners:
- Property owners with septic systems less than 10 years old to be given either three years to connect to the mainline sewer once it is made available, or the difference between the age of their septic system and 10 years, whichever is greater; and
- Council passed resolution CR433/2020 which gave the property owners the opportunity to work with administration, using appropriate regulations, to repurpose their septic systems rather than de-commissioning and that the residents be given the option to apply this portion of the work to the private local improvement option outlined earlier.
Analysis and Disposition
39The background information provided to the Tribunal was reviewed in advance of the Hearing, and Ms. McGuire did an excellent job of explaining in detail all the concessions that the City is prepared to make in an effort to ease the financial burden on the property owners.
40The Tribunal also appreciates the efforts made by City staff to review each objection in detail, make technical recommendations such as the use of trenchless technology where warranted, and make frontage adjustments where warranted.
41The Tribunal notes that the Windsor International Airport fronts along the north property line of County Road 42 and is serviced internally with its own sanitary sewer system. The Tribunal also notes that the proposed new hospital to be located on County Road 42, further to the east will be serviced directly from the existing trunk sanitary sewer.
42On the basis of the evidence presented at the Hearing, the Tribunal agrees with the City that future construction of a local sanitary sewer along County Road 42 is highly unlikely, unless it is funded 100% by the property owners on the south side of County Road 42.
43The Tribunal also notes that the environmental evidence provided by Ms. McGuire was not challenged.
44In summary, the estimated cost of the Baseline Local Improvement is $1,472,368. The City's share of the cost is $693,008, which includes the City's share of the mainline sewer costs, the former Fairbairn Street right-of-way and City owned and/or assessed properties, leaving the abutting property owners' share of the cost in the amount of $779,360. This means that the abutting property owners are paying approximately 53% of the cost of this sanitary sewer while the general tax rate is paying 47% of the cost of this sewer.
45On the basis of the written Affidavit and oral submissions received, the Tribunal finds that the City's application for Local Improvement By-Law No. 151-2020 is appropriate and justified.
Order
46The Tribunal orders that City of Windsor By-Law No.151-2020, being a by-law to authorize the construction of a sanitary sewer and private drain connections on Baseline Road from 7th Concession Road to 8th Concession Road is approved.
47The Tribunal further orders that City staff work cooperatively with affected property owners with respect to the implementation of remedial concessions as contained in the body of this Decision.
48The Tribunal may be spoken to should there be any issues with implementing the above Order.
"T. Prevedel"
T. PREVEDEL MEMBER
Ontario Land Tribunal Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal ("Tribunal"). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.