4. MCEVOY BRANCH OF THE SHIELDS MUNICIPAL DRAIN COURT OF REVISION

COMMISSION DE REVISION DU DRAIN MUNICIPAL MCEVOY BRANCH DE SHIELDS

COMMITTEE RECOMMENDATIONS

That Council:

1. Approve the assessments as outlined in the Engineer's Report; and

2. Give third reading to the McEvoy Branch of the Shields Municipal Drain By-law.

RECOMMANDATIONS DU COMITÉ

Que le Conseil :

1. approuve les évaluations décrites dans le rapport de l'ingénieur:

2. lire une troisième fois le Règlement municipal sur les installations municipales de drainage McEvoy Branch of the Shields.

Documentation

1. Deputy City Manager's report, Infrastructure Services and Community Sustainability dated 23 March 2009 (ACS2009-ICS-WWS-0006).

Report to / Rapport au:

Agriculture and Rural Affairs Committee /

Comité de l’agriculture et des questions rurales

and Council / et au Conseil

23 March 2009 / le 23 mars 2009

Submitted by / Soumis par: Nancy Schepers,

Deputy City Manager / Directeur municipal adjoint

Infrastructure Services and Community Sustainability /

Services d’infrastructure et Viabilité des collectivités

Contact Person / Personne ressource: Dixon Weir, Director / Directeur

Water and Wastewater Services / Services de l’eau et des eaux usées

613-580-2424, x22002 Dixon.Weir@ottawa.ca

Osgoode (20)

Ref N°: ACS2009-ICS-WWS-0006

SUBJECT:	MCEVOY BRANCH OF THE SHIELDS MUNICIPAL DRAIN COURT OF REVISION

OBJET :	Commission de révision du drain municipal McEvoy Branch de Shields

REPORT RECOMMENDATIONS

That the Agriculture and Rural Affairs Committee, in its capacity as the Court of Revision:

3. Approve the assessments as outlined in the Engineer's Report; and

4. Recommend Council give third reading to the McEvoy Branch of the Shields Municipal Drain By-law.

RECOMMANDATIONS DU RAPPORT

Que le Comité chargé de l'agriculture et des questions rurales, en sa qualité de tribunal de révision:

3. approuve les évaluations décrites dans le rapport de l'ingénieur:

4. recommande au Conseil municipal de lire une troisième fois le Règlement municipal sur les installations municipales de drainage McEvoy Branch of the Shields.

BACKGROUND

The McEvoy Branch of the Shields Municipal Drain is located in Greely, in the vicinity of Hwy 31 (Bank St.) and Parkway Road, in Osgoode Ward, and was originally constructed under By-law 7-1979 by the former Township of Osgoode.

Modifications and improvements to the McEvoy Branch of the Shields Municipal Drain were initiated by request under Section 78 of the Drainage Act, RSO, 1990, c.17. as part of a development application and plan of subdivision by the landowner/developer. Stantec Consulting Ltd. were subsequently appointed by Council on 23 January 2008, to prepare an Engineer’s Report. The Engineer’s Report identifies a 664 metre section of the Municipal Drain (see Attachment 1) which has been relocated from the middle of the property to the southern boundary of the property. The relocated section of drain was constructed in 2006 by the landowner/developer to allow for bank and channel stabilization as well as fish habitat and environmental measures to become effective prior to redirecting flows through the ditch. In consultation with the South Nation Conservation Authority a fish habitat plan has been prepared and incorporated into the drainage works and includes, riparian vegetative plantings, bank erosion protection, four areas of gravel and cobble substrate, four refuge pools habitat areas as well as drain inlet and outlet erosion protection measures. Plan SP-3 in the Engineer's Report identifies the locations of the various environmental features. The original section of the municipal drain is to be filled-in once the new section of drain has sufficiently stabilized to the satisfaction of the Drainage Superintendent and the South Nation Conservation Authority. Copies of the Engineer’s Report have been previously distributed to the affected property owners and standing committee members.

DISCUSSION

The Drainage Act prescribes the process and timelines that must be followed for any modification to a municipal drain. (The “Þ” below indicates the current step in the process for the McEvoy Branch of the Shields Municipal Drain.) In brief, the complete process includes:

· Appoint an Engineer to prepare the Engineer’s Report (23 January 2008);

· Conduct an On-site Meeting with the landowners who will be affected to review the proposed modifications (Completed 29 November 2007);

· Conduct a Meeting to Consider - consideration by the Agriculture and Rural Affairs Committee of the Engineer’s Report and the By-law (Attachment B) to adopt this Report
(26 February 2008);

· Council approval of the Committee recommendation and first and second reading of the By-law (11 March 2009);

Þ Convene a Court of Revision - a meeting of the Agriculture and Rural Affairs Committee, where landowners may appeal their assessment. The Court of Revision may direct the Engineer to revise the assessment contained in the Report. All landowners who are affected must then be advised of any revisions, and the Drainage Act contains provisions for further appeal by landowners of their assessment;

· Third reading of the By-law at Council;

· Construction of the drainage works; and,

· Assessment of the costs to benefiting landowners and road authorities.

The Drainage Act provides some guidance as to how the Court of Revision is to proceed:

· Section 55 states that in any appeal to the Court of Revision, if the Engineer is called upon to give evidence as to how an assessment was determined, the Engineer must give evidence before the appellant's case is presented.

· Section 53 addresses those cases where the ground of appeal is that lands or roads are assessed too high, and the Court of Revision is satisfied that those assessments should be reduced. In such cases, where there is no evidence to indicate that the amount of the reduction should be levied against lands or roads whose owners are parties to the appeal, the court shall adjourn. The Clerk must then notify such persons as the appellant may specify, who are shown by the last revised assessment roll to be owners of land affected. The notification must state the date to which the hearing is adjourned. At the renewed date, the Court must dispose of the matter and, where appropriate, redistribute the assessments in such manner as appears just.

· If the Court of Revision decides to change an assessment, Section 56 states that notice of the change must be sent to affected owners and the provisional By-law must be amended accordingly.

· A party to an appeal to the Court of Revision may appeal from the Court to the Agriculture, Food and Rural Affairs Appeal Tribunal (Section 54).

· After the time for appeals to the Court of Revision has expired and there are no appeals, or after the appeals have been decided, Council may give third reading to the provisional By-law, thus authorizing construction of the drainage works. The work may be commenced ten days after the By-law is passed, if no notice of intention to bring an application to quash it has been filed with the Clerk (Section 58(1)).

The Statutory Powers Procedure Act, R.S.O. 1990, c.S.22 also applies to the Court of Revision. This report requests that the Agriculture and Rural Affairs Committee convene a Court of Revision as required by the Drainage Act.

ENVIRONMENTAL IMPLICATIONS

The South Nation Conservation Authority and Fisheries and Oceans Canada have been consulted on the project and provided with a copy of the Engineer's Report. In consultation with the South Nation Conservation Authority a fish habitat plan has been prepared and incorporated into the drainage works and includes, riparian vegetative plantings, bank erosion protection, four areas of gravel and cobble substrate, four refuge pools habitat areas as well as drain inlet and outlet erosion protection measures. Plan SP-3 in the Engineer's Report identifies the locations of the various environmental features. Necessary regulatory approvals have been received.

RURAL IMPLICATIONS

The modified and relocated McEvoy Branch of the Shields Municipal Drain will continue to provide outlet for this branch of the Shields Municipal Drain and surrounding rural roads and lands. Affected landowners have been consulted and provided with a copy of the Engineer’s Report and notified of the date, time and location of the Meeting to Consider.

CONSULTATION

The On-site Meeting, as required under the Drainage Act, was held on 29 November 2007. Affected landowners, agencies and utilities in the watershed were notified in advance of the meeting.

All assessed landowners were notified of the Meeting to Consider the Report and provided with a copy of the Engineer’s Report.

The South Nation Conservation Authority and Fisheries and Oceans Canada have been consulted on the project and provided with a copy of the Engineer's Report and necessary approvals have been received.

LEGAL/RISK MANAGEMENT IMPLICATIONS

There are no legal/risk management impediments to implementing the recommendation in this Report.

FINANCIAL IMPLICATIONS

The cost of the Engineer's Report is approximately $25,200.00 and will be paid entirely by Greely Family Farm Inc.

Project costs have been paid initially by the City of Ottawa, Wastewater and Drainage Services Division, Water and Wastewater Services Branch and will be recovered through assessments to the benefiting landowner, Greely Family Farm Inc. Funds are available in the Approved Capital Budget in internal order 902960 Municipal Drains Improvements.

SUPPORTING DOCUMENTATION

Attachment A - McEvoy Branch of the Shields Municipal Drain Location Plan

Attachment B - McEvoy Branch of the Shields Municipal Drain By-law

Attachment C - Notices of Appeal

A copy of the Engineer's Report and provisional By-law have been provided to all Agriculture and Rural Affairs Committee Members.

DISPOSITION

The Council-appointed Drainage Engineer shall implement the decisions of the Court of Revision. A separate report shall be forwarded to Council concerning the outcome of the Court of Revision and, if appropriate, it will be recommended that Council give third reading to the provisional By-law.

ATTACHMENT A

McEvoy Branch of the Shields Municipal Drain Site Plan

ATTACHMENT B

McEvoy Branch of the Shields Municipal Drain By-law

BY-LAW NO. 2009 -

A By-law of the City of Ottawa to provide for the relocation, partial abandonment and the future maintenance of drainage works in the City of Ottawa – McEvoy Branch of the Shields Municipal Drain.

AND WHEREAS the Shields Municipal Drainage Works By-law, being By-law Number 7 - 1979 of the Township of Osgoode, was passed pursuant to the Drainage Act, R.S.O 1970, c.136 (now the Drainage Act, R.S.O. 1990, c. D.17);

AND WHEREAS the lands referred to in By-law Number 7 – 1979 of the Township of Osgoode are now included in the City of Ottawa by virtue of the City of Ottawa Act, 1999, S.O. 1999, c.14, Sch.E;

AND WHEREAS every By-law of the Township of Osgoode is deemed to be a By-law of the City of Ottawa pursuant to Section 5(6) of the said City of Ottawa Act, 1999;

AND WHEREAS an Engineer, Stantec Consulting Ltd., was appointed on January 23, 2008 by the Council of the City of Ottawa pursuant to Section 78(1) of the Drainage Act to prepare a revised report for the McEvoy Branch of the Shields Municipal Drain and a report dated December 18, 2008 (the “Engineer’s Report”) has been procured and is on file with the City Clerk;

WHEREAS the Shields Municipal Drain and McEvoy Branch was originally petitioned and became a Municipal Drain under an Engineer’s Report by A.J. Graham dated 1978 that provided for the construction of the Shields Main Drain, being a total length of 3,175 feet (968 meters) and the McEvoy Branch to be constructed on the west side of Highway 31 (Bank Street);

AND WHEREAS it is necessary to change the course of the McEvoy Branch of the Shields Municipal Drain drainage works, to partially abandon the existing McEvoy Branch on the east side of Highway 31 (from the east side of the concrete culvert to its former outlet into the Shields Main Drain) pursuant to Section 84 of the Drainage Act, and to provide for the future maintenance of the relocated McEvoy Branch of the Shields Municipal Drain pursuant to Section 78 of the Drainage Act, due to the development by the owner, Greely Family Farm Inc., of the lands on which the McEvoy Branch of the Shields Municipal Drain drainage works is located;

AND WHEREAS the McEvoy Branch of Shields Municipal Drain, after it is relocated pursuant to this By-law will drain the following roads and lands:

City of Ottawa, formerly the geographic Township of Osgoode, more specifically the south east one-half of Lot 7 in Concession 5;

AND WHEREAS the estimated costs associated with the Engineer's Report is $25,200.00;

AND WHEREAS Greely Family Farm Inc. shall pay the entire costs of the construction of the drainage works, including the costs associated with the Engineer's Report;

AND WHEREAS the Engineer’s Report identifies certain lands as a working space, within the meaning of Section 63 of the Drainage Act, that is necessary for the contractor and the contractor’s assistants to enter upon, with their equipment, to complete the work required to relocate the drainage works as set out in the Engineer’s Report;

AND WHEREAS the McEvoy Branch of the Shields Municipal Drain, after it is relocated in accordance with the Engineer’s Report, will be located entirely within the City of Ottawa and pursuant to section 74 of the of the Drainage Act the City of Ottawa is responsible to attend to the required future maintenance and repair;

AND WHEREAS the cost of all future maintenance and repair of the McEvoy Branch of the Shields Municipal Drain is to be apportioned to land owners in the City of Ottawa in the same proportions as set out in the original Engineer’s Report for the Shields Municipal Drain prepared by A. J. Graham in 1978, as modified by the “Future Schedule of Assessment” that is attached to the Engineer’s Report;

AND WHEREAS Council of the City of Ottawa is of the opinion that the drainage of the area is desirable;

AND WHEREAS Council of the City of Ottawa considers it desirable to give this By-law 1^st and 2^nd reading on March 25, 2009 so that it is provisionally adopted pursuant to Section 45 of the Drainage Act;

THEREFORE the Council of the City of Ottawa enacts as follows:

1. The report entitled Engineer's Report for the McEvoy Branch of the Shields Municipal Drain prepared by Stantec Consulting Ltd., dated December 18, 2008 and filed with the City Clerk (the “Engineer’s Report”), is hereby adopted and the drainage works as therein indicated and set forth is hereby authorized and shall be completed in accordance therewith.

2. Greely Family Farm Inc. shall pay the entire cost of all work required to relocate the McEvoy Branch of the Shields Municipal Drain as set out in the Engineer’s Report, including the costs associated with the Engineer's Report.

3. The contractor and the contractor’s assistants when engaged in the construction, maintenance, improvement or repair of the drainage works associated with the McEvoy Branch of the Shields Municipal Drain, as set out in the Engineer’s Report, are authorized to enter, with their equipment, upon the lands within the working space that is designated in the Engineer’s Report and the working space shall not be obstructed.