1. DOWDALL MUNICIPAL DRAIN
INSTALLATIONS MUNICIPALES DE DRAINAGE DOWDALL
That Council adopt the Engineer's Report for the Dowdall Municipal Drain and give first and second reading to the attached By-law in accordance with Sections 42 and 45 of the Drainage Act of Ontario.
Recommandation du Comité
Que le Conseil municipal approuve le rapport de l’ingénieur concernant les installations municipales de drainage Dowdall et de présenter en première et deuxième lectures le règlement ci-joint, conformément aux articles 42 et 45 de la Loi sur le drainage de l’Ontario.
1. Deputy City Manager’s report (Infrastructure Services and Community Sustainability) dated 6 January 2010 (ACS2010-ICS-ESD-0006).
2. Extract of Draft ARAC Minutes, 14 January 2010.
Report to / Rapport au :
Agriculture and Rural Affairs Committee
Comité de l’agriculture et des affaires rurales
and Council / et au Conseil
Submitted by / Soumis par : Nancy Schepers,
Deputy City Manager / Directrice municipale adjointe
Ref N°: ACS2010-ICS-ESD-0006
That the Agriculture and Rural Affairs Committee recommend that Council adopt the Engineer's Report for the Dowdall Municipal Drain and give first and second reading to the attached By-law in accordance with Sections 42 and 45 of the Drainage Act of Ontario.
RECOMMANDATION DU RAPPORT
Que le Comité de l’agriculture et des affaires rurales recommande au Conseil municipal d’approuver le rapport de l’ingénieur concernant les installations municipales de drainage Dowdall et de présenter en première et deuxième lectures le règlement ci-joint, conformément aux articles 42 et 45 de la Loi sur le drainage de l’Ontario.
The Dowdall and Morold Municipal Drains are located in the vicinity of the intersection of Franktown Road and Dwyer Hill Road and were originally constructed in 1971 under By-law 3969 and in 1972 under By-law 17-72 respectively of the former Township of Goulbourn. The original Engineer’s Report, dated December 20, 1971, was completed by A.J. Graham Engineering Consultants Ltd. The Dowdall Municipal Drain was last improved in Lots 3 through 7, Concession IV and Lots 3 through 7, Concession V, geographic Township of Goulbourn, under the Engineers Report by A.J. Robinson & Associates Inc., Consulting Engineers, dated August 1978, and revised February 1979.
The City initiated the current Engineer’s Report as a result of requests to reduce flooding, correct problems resulting from changes to the drainage system and for improved surface and subsurface drainage on agricultural and residential lands in the drainage basin. Agricultural land use has intensified since the original improvements were completed resulting in an increase in cultivated land and tile drainage, which in turn has resulted in an increase in peak rate and volume of runoff in the drainage basin. The Heron Lakes Estates residential subdivision, through which the drain passes, has also been developed since the original Engineer’s Report was completed and there has been ongoing development of the Department of National Defence (DND) lands located in Lot 6, Concession IV. Intensified agricultural land use, urbanization, the addition of a Government of Canada Facility, and other un-documented changes, have resulted in both increased flows and the re-distribution of flow in some areas.
A new Engineer’s Report, under Sections 65, 78 and 84 of the Drainage Act, R.S.O. 1990, is required to address these modifications and drainage issues within the subwatershed and Robinson Consultants Inc. was appointed by the City of Ottawa to prepare a report for Improvements of the Dowdall and Morold Municipal Drain under the Drainage Act, RSO 1990. The on-site meeting was held on May 12, 2005 at 1:00 p.m. at the park on Lakewood Drive in Heron Lake Estates. A second information meeting was held with assessed property owners in the drainage basin on June 8, 2009 to informally present the report and to receive comments and input. The first meeting to consider the report was held on June 11, 2009.
Based on the recommendation of the Engineer and the input from a delegation of property owners, the original Engineer’s report, dated April 2009, was referred back to the Engineer in accordance with Section 57 for reconsideration taking into account input received at the meeting to consider the report and the information meeting of June 8, 2009. All comments were considered by the Drainage Engineer and the scope of work reduced where possible.
Proposed Drainage Works (please refer to the plan attached hereto as Document 2)
In the revised engineer’s report immediate modifications and improvements are recommended on part of sections 1 and 2 of the main drain beginning 72 metres upstream of the confluence of the Dowdall Municipal Drain and the Jock River and continuing upstream some 1100 metres to where the drain was re-aligned without the benefit of an amendment to the original Engineer’s Report, included in these improvements is the replacement of the culverts under Lakewood Drive. Improvements to Section No. 1 of the main drain will significantly reduce the flooding problems in Heron Lake Estates and will provide an improved outlet for the remainder of the drainage basin. Improvements to the lower part of Section 2 of the main drain immediately upstream of the stormwater pond will serve to stabilize the banks, provide for erosion control, insure outlet for the upstream lands, and the report will include the amended alignment. The implementation of Branch No. 6 and completion of work previously undertaken without an amendment to the Engineer’s Reports will establish Branch No. 6 as the legal outlet for the DND property and upstream property owners whose lands drain to Branch No. 6. In summary, the new Engineer’s Report provides for immediate modifications and improvements, including some deepening and widening of the existing channel along with bank restoration and stabilization and the installation of fish habitat measures only to the downstream sections of the Main Drain, and Branch 6, including roadway structures and farm culverts. The total costs of the drainage works has been reduced by some $180,000 from the original report with a greater portion assessed to the City.
The Drainage Act prescribes the process and timelines that must be followed for any modification or construction of a municipal drain. (The “Þ” below indicates the current step in the process for the Dowdall Municipal Drain.) In brief, the process includes:
· Council appointment of the Drainage Engineer (9 March 2005);
· Conduct an On-site Meeting with affected landowners to review the proposed modifications, (12 May 2005);
· Submission of the Engineer's Report to Clerk (29 April 2009);
· Preliminary meeting with landowners to discuss Engineer’s findings (8 June 2009);
· Conduct a Meeting to Consider – (The meeting of the Agriculture and Rural Affairs Committee to consider the Engineer’s Report and the By-law (Document 3) presented in this report) (11 June 2009);
· Committtee recommended that the Engineer’s Report be referred back to the Engineer under Section 57 of the Drainage Act;
· Council approval of the Committee recommendation (24 June 2009);
· Second public meeting with landowners to discuss Engineer’s revised report (19 Nov 2009);
· Þ Second Meeting to Consider - (14 January 2010 - The meeting of the Agriculture and Rural Affairs Committee to consider the Engineer’s Report and the By-law (Document 2) presented in this report);
· Council approval of the Committee recommendation and first and second reading of the By-law (subject to the outcome of the Meeting to Consider and associated appeals process);
· Convene a Court of Revision – (A meeting of the Agriculture and Rural Affairs Committee where landowners may appeal their assessment. Notices to be sent out within 30 days of provisional adoption of the by-law and Court of Revision to be held between 20 and 30 days of notices being sent). Committee may direct the Engineer to revise the assessment contained in the Report. All affected landowners must then be advised of any revisions and the Drainage Act contains provisions for further appeal by landowners of their assessment within prescribed time frames;
· Third reading of the By-law at Council;
· Construction of the drainage works; and
· Assessment of the costs to benefiting landowners and road authorities (2010).
The original Engineer’s Report, dated April 2009, was referred back to the Engineer under Section 57 of the Drainage Act by Council on 24 June 2009 in response to concerns expressed by assessed landowners with the initial scope and estimated cost of the drainage works. This report, places the revised Engineer’s Report, dated December 17, 2009 before the Agriculture and Rural Affairs Committee as the Meeting to Consider as required by the Drainage Act. Pursuant to Section 41 of the Drainage Act, within 30 days of the filing of the Engineer’s report the initiating municipality shall send a copy of the report and notice of the meeting to consider to the various landowners, municipalities, conservation authorities and utilities as described in the Act. The time for filing the Engineer's Report was extended under Section 39(1) of the Drainage Act by Council resolution on 10 December 2008.
At the 11 June 2009 ARAC meeting the Chair suggested that a direction to staff be noted that staff respond to the following points when bringing forward their subsequent report:
· Provide information regarding Councillor Brooks’ first motion with respect to the City absorbing costs of the Engineer’s Report and related works for the Dowdall Municipal Drain.
· Outline the impacts on other municipal drains across the City.
· Inquire with the Department of National Defence on their status and future intentions regarding municipal drains.
Referring to the 8 June 2009 meeting, Councillor Brooks noted that property owners wanted the City to pay for the entire cost given the way this file was handled and noted that he prepared the following motion to that effect:
THEREFORE BE IT RESOLVED THAT the City of Ottawa pay and absorb the entire costs of the Engineer’s Report and the related works for the Dowdall Municipal Drain.
The legal issues regarding the first and second directive are addressed in the LEGAL/RISK MANAGEMENT IMPLICATIONS section of this report, below. From a practical standpoint, the City would be setting a precedent by paying the full cost of a drainage project under the Drainage Act. The consequences of this precedent would have a significant future financial impact from a maintenance cost recovery perspective and as the number of petitions for new drainage works, under the Act, would likely increase substantially.
In response to the third directive concerning the Department of National Defence (DND), City staff have communicated with DND staff and provided information on Municipal Drains.
The Rideau Valley 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 Rideau Valley Conservation Authority, a fish habitat impact assessment and mitigation plan has been prepared and incorporated into the drainage works and includes: riparian vegetative plantings; bank erosion protection; areas of gravel and cobble substrate; refuge pools habitat areas; drain inlet and outlet erosion protection measures; and a construction monitoring plan. Plan 05017-A3 in the Engineer's Report identifies the locations of the various environmental features. Necessary regulatory approvals have been received.
The modified and relocated Dowdall Municipal Drain will continue to provide outlet for 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.
The On-site Meeting, as required under the Drainage Act, was held on 12 May 2005. Affected landowners, agencies and utilities in the watershed were notified in advance of the meeting.
A general meeting was held on 8 June 2009 to discuss the Engineer’s Report with affected landowners.
A Meeting to Consider the Report was held before ARAC on 11 June 2009 at which time Committee, in response to feedback from affected landowners, recommended that the Engineer’s Report be referred back to the Engineer under Section 57 of the Drainage Act.
Assessed landowners have been notified of the second Meeting to Consider and have been provided with a copy of the Engineer’s Report. A second meeting with affected landowners was held on 19 November 2009 and a third on December 15, 2009 to review the revised Engineer’s Report.
The Rideau Valley Conservation Authority and Fisheries and Oceans Canada have been consulted on the project and provided with a copy of the Engineer's Report. Necessary approvals have been received.
The Councillor for Ward 21 is aware of this report and the proposed drainage works. Several meetings between the Councillor, landowners, City staff and the Drainage Engineer have taken place over the last several months.
The Drainage Act provides that the allocation of the cost of drainage works is to be determined by the Drainage Engineer. While Section 52 of the Drainage Act provides that any landowner within the watershed who is dissatisfied with any assessment in the engineer's report may appeal to the Court of Revision, such appeals are limited to the proper amounts to be assessed against such lands. Therefore, the Drainage Act does not provide for a municipality to alter any assessment in the engineer's report by assuming costs that the Drainage Engineer recommends be assigned to landowners.
Table 9.1 Cost Estimate Summary on page 29 of the Engineer's December 2009 Report indicates that the total cost of "All Works" is $486,573.98, being (i) $366,503.98 for the "Routine Municipal Drain" work/improvements, and (ii) $120,070.00 for the "RVCA Permit and Fisheries Related Works" - the $120,070.00 includes for $40,240.00 "Construction" and $77,680.00 for "Fisheries Studies".
The apportionment of the total cost of $486,573.98 is as follows:
City of Ottawa Road Authority $ 19,012.57 4%
City of Ottawa Drain Construction Costs $312,803.28 64%
National Defence Canada $ 60,541.27 12.5 %
Heron Lakes Estates $ 58,122.86 12 %
(Assessed to Properties) $ 36,094.01 7.5%
CITY STRATEGIC PLAN
The estimated total cost of the Drainage works, including the Engineer's Report and associated studies, is $486,573.98. Of this, $94,216.87 is to be assessed to benefiting property owners, $60,541.27 to the Department of National Defence, and $312,803.28 to the City.
Project costs have and will be paid initially by the City of Ottawa, Wastewater and Drainage Operations Branch, Environmental Services Department, and will be recovered through assessments/recoveries to the benefiting landowners. Funds are available in the 2009 Approved Capital Budget in internal order 902960 Municipal Drains Improvements. The City’s share of $312,803.28 will be identified and included in the Public Works Department’s 2010 Draft Capital Budget.
Document 1 - Dowdall Municipal Drain Location Plan
Document 2 - Dowdall Municipal Drain Required Work Areas Plan
Document 3 - Dowdall Municipal Drain By-law
A copy of the Engineer's Report has been provided to all Agriculture and Rural Affairs Committee Members and is held on file with the City Clerk.
Upon approval by Council, the City Drainage Superintendent will notify all assessed landowners of the date of the Court of Revision.
Dowdall Municipal Drain Location Plan
Dowdall Municipal Drain Required Work Areas
BY-LAW NO. 2010 -
A by-law of the City of Ottawa to provide for drainage works in the City of Ottawa to be known as the Dowdall Municipal Drain.
WHEREAS the Council of the City of Ottawa in accordance with the provisions of Section 78 of the Drainage Act, R.S.O. 1990, c. D.17 (the “Drainage Act”) requesting that the following lands and roads be drained by a drainage works: City of Ottawa, formerly the geographic Township of Goulbourn, more specifically Lots 7, Concession III, parts of Lots 1 through 7, Concession IV, parts of Lots 1 through 7, Concession V, geographic Township of Goulbourn, Parts of Lots 26 and 27, Concession IV and Parts of Lots 26 and 27 Concession V, geographic Township of Beckwith;
AND WHEREAS the Dowdall Municipal Drain upon enactment and passage of this by-law and shall be maintained in accordance with the provisions of the Drainage Act;
AND WHEREAS the Council of the City of Ottawa has procured an Engineer’s Report pursuant to Section 78 of the Drainage Act, R.S.O. 1990, c. D.17 and the report dated December 2009 prepared by Robinson Consultants Inc., Consulting Engineers is on file with the City Clerk;
AND WHEREAS the estimated total cost associated with the construction, engineering, contract administration, allowances, report and contingencies of the drainage works is $486,573.98, as per Table 9.1 of the Robinson Consultants Inc., Consulting Engineer’s Report dated December 2009;
AND WHEREAS $312,803.28 is the amount to be charged to the City of Ottawa for construction of the drainage works in accordance with the Schedule A Summary of Assessments for Construction that forms part of Appendix A in the Robinson Consultants Inc., Consulting Engineer’s Report dated December 2009;
AND WHEREAS the remaining cost of the construction of the drainage works is to be charged to the landowners in the drainage basin in accordance with Schedule A Summary of Assessments for Construction that forms part of Appendix A in the Robinson Consultants Inc., Consulting Engineer’s Report dated December 2009;
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 1st and 2nd reading on January 27, 2010 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, Dowdall Municipal Drain, Modifications and Improvements, Goulbourn Ward and Township of Beckwith, dated December 2009, filed with the City Clerk, is hereby adopted and the drainage works as therein indicated and set forth is hereby authorized and shall be completed in accordance therewith.
2. The Corporation of the City of Ottawa may borrow on the credit of the Corporation the amount of $486,573.98 being the amount necessary for construction of the drainage works.
3. The Corporation of the City of Ottawa may arrange for the issue of debentures on its behalf for the amount borrowed less the total amount of
(a) grants received under Section 85 of the Act;
(b) commuted payments made in respect of lands and roads assessed within the municipality;
(c) money paid under Subsection 61(3) of the Drainage Act; and
(d) money assessed in and payable by another municipality,
and such debentures shall be made payable within ten (10) years from the date of the debenture and shall bear interest at a rate to be set by the City of Ottawa.
4. Of the $312,803.28 to be charged to the City of Ottawa for the construction of the drainage works, the sum of $312,803.28 is assessed for Special Benefit.
5. The remaining cost of the construction and future maintenance of the drainage works shall be charged to the landowners in the drainage basin in accordance with Schedule A Summary of Assessments for Construction that forms part of Appendix A in the Robinson Consultants Inc., Consulting Engineer’s Report dated December 2009.
6. All net assessments of $1,000.00 or less are payable in the first year in which the assessment is imposed.
7. This by-law comes into force on the passing thereof and may be cited as the “Dowdall Road Municipal Drain Improvement By-law, 2010”.
ENACTED AND PASSED this XXth day of March, 2010
CITY CLERK MAYOR
BY-LAW NO. 2010 -
A by-law of the City of Ottawa to provide for the abandonment of the Morold Municipal Drain and the partial relocation, improvement and future maintenance of drainage works in the City of Ottawa – Dowdall Municipal Drain.
1st Reading….…….…… January 27, 2010
2nd Reading……….…… January 27, 2010
3rd Reading………….… , 2010
Enacted by City Council at its meeting of , 2010.
The Drainage Act, sections 42, 45, 57, 74, 78 and 84
City Council March 9, 2005
ARAC Report 8, Item 4
City Council January 27, 2010
ARAC Report _____, Item ____
Dowdall Municipal Drain
InSTALLATIONS MUNICIPALES DE DRAINAGE DOWDALL
At the outset, Acting Chair El-Chantiry read a statement advising that the current meeting was being held pursuant to Section 42 of the Drainage Act and was only for the purpose of considering the Engineer’s report and associated By-law, and to receive any written submissions with respect to the technical aspect of the construction of the drainage works. He noted that consideration of appeals to assessments by landowners will be heard by the Court of Revision at a time yet to be determined, prior to which, all assessed landowners will be provided with written notice of the time and place of the convening of the Court. He explained that at this time, landowners will also be provided with an opportunity to file an appeal of their assessment by submitting it in writing to the City Clerk. The Acting Chair then encouraged anyone wishing to submit written comments on the technical merits of the Engineer’s report only, to do so by providing their details to the Committee Assistant.
Further to the Acting Chair’s statement, Mr. David Ryan, Project Manager, Municipal Drainage, Wastewater and Drainage Operations, Environmental Services, Infrastructure Services and Community Sustainability, explained that the Court of Revision meeting to hear and adjudicate landowners’ concerns regarding their assessments, also to be held under the Drainage Act, will likely take place in March, pending the outcome of the current meeting and the recommendations of Council. He then summarized that at the Agriculture and Rural Affairs Committee (ARAC) meeting of 11 June 2009, the Engineer’s report was referred back to the Engineer under Section 57 of the Act for reconsideration, to take into account input received at that time. Mr. Ryan then introduced Mr. Andy Robinson, P.Eng., Robinson Consultants Inc., who spoke to a detailed PowerPoint slide presentation which provided an overview of the revised report and his findings. A copy of this presentation is held on file with the City Clerk.
Highlights of the presentation included the following:
· Project History, covering:
Ø Existing reports, dating back to 1969, 1971 and 1979;
Ø The new Engineer’s report (Robinson Consultants, Inc., March, 2005);
Ø Outcomes of previous meetings held between 2005 and 2009 to discuss overall project costs, assessments and the need for the project in general;
· Findings of the Engineer following the latest ARAC referral to address landowner concerns, including an overview of works required and not required at this time:
Ø Required: Section 2 (upstream of Station 1+200) to accommodate required flows, repair previously completed works, and allow for the incorporation of previous modifications, Section 1 and Branch No. 6, to accommodate required flows, and incorporate the required abandonments and realignments
Ø Not required: Section 2 (upstream of Station 1+200), Section 3 and Branch No. 8 (works previously completed by the Road Authority)
· Assessments of the total estimated cost against the affected lands and roads under the categories of:
Ø Benefit (advantage to any lands, roads, buildings or other structures from the construction, improvement, etc., of drainage works resulting in any advantages relating to their betterment);
Ø Outlet Liability (pertaining to ‘improved’ outlets within drainage basins);
Ø Special Benefit (additional works or features included in the construction, etc., of drainage works, resulting in additional work beyond mandated design standards), charged where special engineering or design consideration is required to ensure an adequate outlet downstream of a property;
· Special Benefits charged to:
Ø City of Ottawa - Road Authority (for Engineering and other costs associated with road crossings;
Ø City of Ottawa - Drain Construction (for costs associated with increased requirements of drainage downstream of road crossings);
Ø National Defence Canada [(NDC or DND), for improvements required as a result of improper infilling of drainage branches and required modifications to same];
Ø Heron Lakes Estates Subdivision (for increased costs associated with the subdivision)
· Distribution of costs to properties;
· Cost estimates (total revised costs to complete all works associated with reduced scope of Dowdall Municipal Drain (DMD), estimated at $487,000.00), further broken down by cost estimate details, assessments and postponed costs); and
· Future maintenance issues.
Responding to questions from Councillor Brooks as to the project’s origins, Mr. Ryan explained that in 2001, the City had received complaints from a number of owners upon whose lands the drainage had been changed. He said several requests for maintenance had been received from landowners in regard to beaver issues, and one from an individual owning property between DND and the Heron Lake Estates subdivision, upon whose land the Drain had been modified by DND, resulting in flooding which needed to be addressed under the Drainage Act. Mr. Ryan elaborated that previous changes to the Drain by the former Township of Goulbourn on the lands in between DND and the Heron Lake Estates subdivision, and within the subdivision itself, had not been properly documented or dealt with under the Drainage Act, i.e., the drainage report had not been updated at the appropriate time. He explained that in order for the City to maintain the Drain, a viable Engineer’s report and By-law are required, which also require updating when changes are made, under Section 78 of the Act.
Mr. Dave Western, President, Heron Lake Community Association, spoke from a prepared statement (held on file with the City Clerk) to indicate the Association’s displeasure with Mr. Robinson’s interpretation of a pooling agreement (Agreement #423258, dated 30 August, 1985) between the developers of Heron Lake Estates and the Township of Goulbourn. Mr. Western explained that the purpose of this document, the existence of which owners had been previously unaware, was ostensibly to provide for the cost of the work on the Heron Lake Estates’ portion of the Drain, to be divided equally among the 41 property owners. Mr. Western felt this document had been misinterpreted by the Engineer to mean that Heron Lake Estates residents should assume a greater portion of the costs associated with the work to be done on Section 1 of the main Drain than had been set out in the April, 2009 report. Mr. Western further explained this would mean residents’ portion of the costs of the work would increase from approximately $14,500 to $60,000 or, from $354.35 to $1,463.41 per property owner. The speaker reported that residents had sought and been given a legal opinion to the effect that “…the engineer misinterpreted the effect of the Agreement and used the misinterpretation to change his assessments from the April Report. Inasmuch as this was all or part of the engineer's rationale to amend the assessments, it is unsupportable in law.” In conclusion, Mr. Western asked Committee to reject the current report and return it to the Engineer with instructions to recalculate the apportionment of costs to all landowners without regard to the existence of the pooling agreement, in a manner similar to that used to calculate the assessments in Mr. Robinson’s report of April, 2009, further to which residents could agree to an equal division of assessed costs.
Responding to questions from Councillor Brooks, Mr. Western confirmed that the cost to perform the proposed works had not changed, but that the burden of costs had been reapportioned, despite the work now focusing on a reduced area as per the directions of Councillor Brooks’ Motion of 11 June 2009.
Councillor Hunter asked whether the exclusion of upstream works in Section 3 had caused a reapportionment of the cost amongst landowners. Mr. Robinson said this would have an effect on that particular area when maintenance or other work was to be performed in future, but that this did not affect the area currently under discussion.
Mr. Dale Thompson, a Heron Lake Estates subdivision resident and Executive member of its Community Association, reiterated aspects of Mr. Western’s presentation regarding residents’ contention that the December, 2009 version of Mr. Robinson’s report was fundamentally flawed on legal grounds. He reminded Committee that based on objections raised at ARAC's meeting in June of 2009, the Committee had opted to refer the Engineer’s report back for further revision pursuant to Section 57 of the Act, and he contended that the legal issues raised by Mr. Western were sufficiently compelling to warrant further revision. He also questioned whether sections of upstream work had been deleted for professional engineering reasons, or for reasons of fiscal expediency and the willingness of residents to participate. Referencing the 1985 pooling agreement and its impact on the overall report, Mr. Thompson stated this document had been presented to residents at a community meeting in November, but felt it should have been provided much earlier. Despite acknowledging the engineer’s assertion that the overall costs of the Drain were reduced, the speaker noted that the cost to the City for Section 1 would nearly double, which he felt would set a dangerous precedent for taxpayers, were the City to absorb such costs. In conclusion, Mr. Thompson felt the concerns he and others had raised were of equal magnitude to those raised in June, and that it was inherent on Committee to exercise its rights under Section 57 of the Act and ask for a further revision to correct fatal errors in law that had affected the entire process.
Mr. Bruce Chrustie, a resident in the Dowdall drainage area, expressed that the issue was not one of the apportioning of costs between agricultural residents and residents of the subdivision, but rather an one of cause and effect, where the City needed to take responsibility for making corrections to substandard changes to the Drain that had previously been undertaken by DND and the former Township of Goulbourn. Mr. Chrustie asserted that no-one in the agricultural basin disputed that the Drain would require periodic maintenance, but suggested further clarification from the engineer was needed, to quantify changes that had been made by DND, and to explain their impact on downstream residents. He also felt that Mr. Robinson’s report needed to address the developer’s failure to complete the engineer’s original drainage plan, which was partly responsible for the flooding in Heron Lake Estates. Mr. Chrustie noted that the purpose of the report was to reduce flooding in the subdivision, the result of intensified agricultural land use, urbanization, the addition of a Federal Government facility, and other undocumented changes which either increased or redistributed flow in certain areas. He also pointed out the report addressed undocumented changes performed outside of the Drainage Act in an area for which the culvert capacity is 2.5 cubic metres per second (m3/s), and noted that periodically, the flow could increase to 2.7 m3/s; making this the only culvert in the drainage basin to experience flooding across the roadway. The speaker found it ironic that there had been no drainage issues prior to the creation of the subdivision, and he questioned whether the original flow estimate for the culvert had been properly specified and whether the culvert had been properly constructed. He said this information was fundamental in determining the cause of the issue in Heron Lake Estates. He expressed appreciation that the scope of the work area had been scaled down, but felt that the cost of implementing the works to remediate changes performed by DND should more properly be assessed to those who had caused the failures, as a Special Benefit only, and not as an Outlet or Benefit to the residents in the drainage area. Responding to a question from Councillor Hunter, Mr. Chrustie contended that the problem with flooding would be solved by upsizing the culvert in the subdivision.
Ms. Bev Miller said she concurred with Mr. Chrustie’s remarks, and thanked Committee for having referred the report, which she said had resulted in a fairer assessment in terms of Special Benefits. Ms. Miller then expressed concern about future maintenance costs, as she pointed out that study costs could be triggered by anyone asking for maintenance on the communal Drain, over which landowners have no control. She asked that a better process be established so that if a complaint is received, local landowners can be immediately notified to mitigate any perceived problems without incurring large costs for engineering, or for studies required by the Department of Fisheries and Oceans (DFO) to study potential effects on fish habitat. She suggested that the City, the Conservation Authorities and DFO work together on a classification system and on common sense solutions for handling the cost of such studies, which she felt could be excessive (i.e., up to $60,000 to study fish habitat in a municipal drain). Ms. Miller pointed out that the Dowdall Drain served to drain the whole watershed, including many City roads that are not a part of the drainage basin, and she said she was concerned with escalating costs and the ability of the City to inadvertently move ditching costs onto farmers, who already have enough financial pressures. In conclusion, Ms. Miller conveyed her concerns that very little in the report had actually been triggered by anything to do with a farmers’ communal agricultural drain that the Drainage Act was supposed to address, but was instead being driven by issues that the former Township of Goulbourn had failed to address, and by DND moving a portion of the Drain onto a City road, thereby transferring costs from itself, and onto the City’s road drainage ditching costs.
Responding to questions from Councillor Brooks, Ms. Miller clarified that the works proposed to mitigate drainage issues for downstream residents were of no real benefit to upstream users, who were still required to pay the same as downstream users. She said the work originally performed in 1969 had been sufficient, as there were no flooding issues for agricultural landowners, but that subsequent changes by the Township of Goulbourn, by DND and by others had nothing to do with an agricultural drain.
In response to questions from Councillor Jellett as to whether upsizing the culvert to allow for an increased flow rate of 3 m3/s would alleviate flooding issues, Mr. Robinson explained that in addition to culvert size, there were also issues involving downstream grade or slope to allow for a proper outlet for water flow.
Councillor Jellett asked if work proposed to be done upstream of the culvert could be eliminated, and that only work downstream of the culvert could be undertaken. Mr. Robinson clarified that only a small amount of work was being proposed upstream, to incorporate erosion control, additional excavation and cleaning to correct an earlier improperly-made change. He said this would primarily be paid for by upstream property owners as a part of required regular maintenance.
Speaking to assessment costs, Councillor Brooks asked how such costs could have risen so substantially (from the initial assessment of $15,000 to the current $60,000), given that the scope of the proposed work had been scaled back between April and December of 2009. Mr. Robinson acknowledged that the construction cost for the area for which Heron Lake Estates would be expected to pay had not changed. However, he explained that property owners pay assessment for work performed at their property and down-stream. He further explained that the draft report considered by ARAC in June was essentially no longer valid, due to new information based on the City’s discovery, mid-summer 2009, of a pooling agreement, which should have been attached to every deed in the subdivision, and which indicated that landowners “may be assessed” for future works. Mr. Robinson speculated that such an agreement may have been part of negotiations between the former Township and the developer, to address drainage issues on which the municipality and developer may not have been in complete accord. He said the Drainage Act did not include apportionment formulas to direct how costs should be assessed, and that he had used his best judgement, using all available information. Mr. Robinson added that should his interpretations be deemed to be wrong, the Court of Revision would afford opportunities for appeal.
Councillor Hunter asked whether such pooling clauses in rural subdivision agreements had not been a standard feature in the past, designed to protect the Region and lower-tier Municipalities from having to undertake works that were necessary for the benefit of the property owners in subdivision lots. Mr. Tim Marc, Senior Legal Counsel, City Clerk and Solicitor’s Department, said he was unfamiliar with the details of drainage issues prior to 2001, which may have varied by municipality. He pointed out that the purpose of the current meeting was to decide to either approve, or to send back, the Engineer’s report for further work. Mr. Marc explained that the City has a responsibility to ensure that drains are properly maintained, and that to not proceed with required works could create liability concerns. He suggested that if Committee were to decide that the work outlined by Mr. Robinson was appropriate, the By-Law should be given First and Second Reading, following which, at a subsequent date, concerns regarding apportionment would properly come before the Committee constituted as a Court of Revision. Mr. Marc said that in the interim, staff could work with Mr. Robinson to provide a fuller explanation of the Court’s jurisdiction and the impact of the agreement prior to Third Reading.
Councillor Hunter remarked that Committee was being asked to deal with something that was not a municipal drain issue, but that happened to be on a municipal drain. He felt that through either the municipal drain process or through actions that needed to be taken to correct problems in the subdivision agreement, the problem was at Heron Lake Estates and it seemed fair that the property owners should be responsible, because of the existing agreement. The Councillor suggested the municipal drain issue had encompassed a number of other existing problems along the way (i.e., periodic flooding) which could be resolved by digging deeper downstream and installing a larger culvert. He then suggested deferring consideration of this matter for two weeks, while referring it to the City’s Legal Department for additional research to the subdivision agreement and pooling agreement, feeling that additional legal advice would be crucial in determining the form of the works to be taken. With respect, Mr. Marc offered that the difficulty with such an approach would be that an additional two weeks’ time would still not afford Committee the legal authority to make any direction with respect to apportionment. He reiterated that at this time, Committee could only direct that the work either proceed, or that the report be sent back. He elaborated that the responsibility of the municipality to proceed with the works was dependent upon the responsibility of the municipality to ensure that the drains were adequately maintained; hence, if Committee was satisfied that the engineer’s report spoke to the issue of proper maintenance, the legal opinion as to who would be financially responsible for those costs was not a relevant factor to this decision.
Speaking to the mechanisms normally followed through the Drainage Act, Mr. Robinson explained that the City would have opportunity for input into the report at the Court of Revision. He outlined that if Committee were to give the By-law First and Second Reading through Council, the date for the Court of Revision could then be set, following which, property owners wishing to contest their assessments could bring such concerns to the Court of Revision, which could make changes at that time, should the Court be persuaded to do so. He added that from a technical perspective, should landowners take issue with the assessment determinations of the Court of Revision, they could appeal such matters to a tribunal, and from a legal point of view, any legal questions or issues could be directed to a drainage referee.
In response to questions from Councillor Brooks regarding potential legal and drainage consequences that could result from Committee not approving the matter before it, Mr. Marc explained that the former was predicated on the latter; failure to perform work to remedy identified problems could create damages to persons benefiting from the Drain, which in turn could result in possible financial liabilities to the City. Councillor Brooks recommended that Committee proceed in the interim, but proposed greater scrutiny of the assessment formula prior to calling for the involvement of any tribunal or referee.
There being no further discussion, the Committee approved the report recommendation.
That the Agriculture and Rural Affairs Committee recommend that Council adopt the Engineer's Report for the Dowdall Municipal Drain and give first and second reading to the attached By-law in accordance with Sections 42 and 45 of the Drainage Act of Ontario.
Councillor Hunter then proposed that Legal staff review the subdivision agreement for Heron Lake Estates, registered in August of 1985, to ensure that the works performed had been done in accordance with approved plans. He asked that, if necessary, Legal staff provide a report identifying those responsible for correcting any deficiencies that might be found to exist. Mr. Marc assured the Councillor that staff would undertake to review this as directed, and that if such information could not be made available prior to Council’s meeting of 27 January 2010, staff would be available to advise at said meeting.
DIRECTIONS TO STAFF
DIRECTIVES AU PERSONNEL
Further to Committee approval of the above recommendation as pertains to the Engineer’s Report regarding proposed drainage works for the Dowdall Municipal Drain, Legal staff are directed to review existing Heron Lake Estates Subdivision agreements to ensure that works have been performed according to approved plans. A report, to include the identification of which party or parties may be responsible for the remediation of any deficiencies, is to be provided to all members of Council prior to Council’s consideration of this matter at its meeting of 27 January 2010.