Balsam Street Drain

In the matter of the Drainage Act R.S.0. 1990, Chapter D.17, as amended.

And in the matter of: Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Clifford and Brenda Tattersall; and Louis and Sandra Varga of Welland, Ontario under Subsection 48(1) and 54(1) of the Drainage Act from the engineer's report and from a decision of the Court of Revision on the Balsam Street Drain in the City of Welland.

Before: Kirk Walstedt, Chair; Jack Young, Vice-Chair; Enio Sullo, Member

Appearances:
Clifford Tattersall - Appellant and assessed landowner
Louis Varga - Appellant and assessed landowner
John Kuntze - Engineer, on behalf of the Municipality

Decision of the Tribunal

This hearing was held in the Municipal Building, City of Welland (the Municipality), on July 12, 2010. Clifford and Brenda Tattersall, and Louis and Sandra Varga appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal under Sections 48(1) and 54(1) of the Drainage Act (the Act) from the Engineer's Report titled "Balsam Street Drain" dated August 7, 2009, prepared by K. Smart Associates Ltd. (the Engineer) and signed by John Kuntze, P.Eng.

Ms. Christine Mintoff, Clerk of the Municipality, performed the duties of the Clerk of the Tribunal.

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

Background

A drainage report was initiated by a petitioner under Section 4 of the Drainage Act for the purpose of restoring a drainage swale along the rear yards of several residential lots on the north side of Balsam Street in the City of Welland. The swale was originally constructed as part of a subdivision development circa 1998. The petitioner purchased his property in 1999. The swale functioned well until approximately 2002 when a downstream neighbour constructed a berm across the swale, resulting in flooding. After unsuccessful attempts to have the blockage removed, the petitioner resorted to the provisions of the Drainage Act. The Municipality subsequently appointed an Engineer to prepare a report under the Act.

The Engineer's report provides for the incorporation of the swale as a drainage works under the Act, and recommends a number of repairs and improvements to the swale. The work recommended also includes cleanup of the swale through a downstream municipally owned property.

The Engineer conducted two site meetings to review and inspect the drainage area, and to hear concerns from affected landowners.

The estimated cost of the works under the report is $17,500 which has been assessed to the affected landowners within the watershed. The report also provides for future maintenance of the drain including provision of access for inspection and maintenance.

Issues

1. Should the allowances for right-of-way and damages under sections 29, 30 and 31 of the Act be modified?
2. Should the assessments for benefit and outlet as shown in the Engineer's report be modified?

Evidence

Appellant: Mr. Varga

Mr. Varga testified that he has had no water problems on his lot since he purchased his property in 1998. He stated that he had basement flooding problems; however, this was not related to the backyard swale.

He felt the allowances offered in the Engineer's report for right-of-way to accommodate the swale were not commensurate with the real estate values in the area. He referred to a 1998 paper on Allowances and Compensation under the Drainage Act by E.P. Dries and D.R. McCready obtained from the OMAFRA website. According to Mr. Varga, the paper states that allowances must be based on actual area land values. He said that the compensation being offered for his property is considerably less than the actual real estate value for an equivalent area of land. He presented several real estate listings for homes in the area which ranged in price from $250,000 to $280,000. From that, he projected that the lot values should be in the range of $70,000 to $90,000. He believed the allowances should have been calculated on a square metre basis for land used commensurate with the overall value of the lot.

Under questioning by Mr. Kuntze, Mr. Varga agreed the swale was in place when he purchased the property in 1998, and that water from the properties to the north flows toward the swale in his back yard. He felt the swale is creating an obstruction for him and he has to remove weeds from the swale.

Appellant: Mr. Tattersall

Mr. Tattersall supported the arguments advanced by Mr. Varga with respect to allowances in the report. He stated that when he bought his property, there was an obligation of all property owners to maintain the swale in their backyards. He felt he should not have to pay for a drainage problem caused by one neighbour and the actions of the Municipality. He also stated that when he bought the property, he was not aware of the water entering the swale from the properties to the north until the preparation of the current Engineer's report.

In addition to the reasons provided by Mr. Varga, Mr. Tattersall was concerned that a project constructed under the Drainage Act will infringe on his privacy by giving the Municipality a right of access to inspect and maintain the drain. He said that additional compensation should be provided for loss of privacy. He also felt his assessment was too high because he has in the past and continues to allow water from his neighbours to flow across his property.

Mr. Kuntze testified that he had only provided for a nominal allowance for right-of-way to satisfy the Act since the swale existed at the time the properties were purchased. Similarly, he had provided only nominal allowances for damages as the construction work provides for complete restoration of the swale including the replacement of sod. He said that the requirement to access the rear yards of these properties in future years for inspection and maintenance would be minimal once the proposed construction is complete.

Mr. Kuntze explained the method he used in assessing for outlet and benefit in the report. He said that if he were to increase the allowances for right-of-way, it would have to be done uniformly for all the affected landowners. If this were done, the increased cost of allowances would have to be assessed over all the landowners within the shed causing an increase of all assessments.

Analysis and Findings

With respect to the issues of allowances for right-of-way and damages, the Tribunal accepts the Engineer's evidence that it is not necessary to compensate for the real estate value of the properties since the swale existed at the time the properties were purchased, and that the allowances provided only apply to the limited use of the drainage channel for construction and maintenance of the project. The Tribunal also accepts the Engineer's evidence for nominal compensation for damages since the properties will be restored after construction to the conditions that existed prior to construction. Neither Mr. Varga nor Mr. Tattersall presented any supportable evidence to contradict what the Engineer stated in his evidence.

The Tribunal accepts the Engineer's methodology in distributing the cost of the project and will not order any changes to the Schedule of Assessment.
.
With respect to Mr. Tattersall's argument regarding loss of privacy, the Tribunal notes that access to property by the Municipality for the purpose of inspection and maintenance is an inherent obligation and requirement of the Drainage Act.

Order of the Tribunal

The Tribunal Orders:

1. The appeals by Clifford and Brenda Tattersall, and Louis and Sandra Varga under Sections 48(1) and 54(1) of the Drainage Act are denied.
2. The non-administrative costs of the Municipality in respect to this appeal shall form part of the cost of the drainage works, and it is ordered that there be no other order as to costs and all parties are responsible for their own costs.

Dated at Maidstone, Ontario this 15th day of July, 2010.