Our Focus: Your Future

Transcription

1 Town of Fort Erie Infrastructure Services Our Focus: Your Future Prepared for Council-in-Committee Report No. IS Agenda Date August 13, 2007 File No Subject WINGER ROAD MUNICIPAL DRAIN STATUS REPORT Recommendations THAT Council authorize payment to K. Smart and Associates Limited (the Drainage Engineer) for appearance at the Tribunal and Mediation hearing in the matter of the Winger Road Municipal Drain as directed by both parties, and THAT Council direct staff to withhold any monetary settlements to private landowners within the Winger Road Municipal Drainage Watershed until otherwise directed by the Ontario Drainage Tribunal or Referee. Relation to Council s Corporate Strategic Plan Priority: Infrastructure Goal: D5 Improve waterflow in ditches and reduce surface flooding Initiative: Not applicable List of Stakeholders 1) Mayor and Council of the Town of Fort Erie 2) Town of Fort Erie Municipal Departments 3) Town of Fort Erie Residents of the proposed Winger Road Drain Watershed 4) Niagara Peninsula Conservation Authority 5) Department of Fisheries and Oceans 6) Ministry of Agriculture and Food Prepared by: Submitted by: Approved by: Brett Ruck Drainage Superintendent Ron Tripp, P. Eng., Director of Infrastructure Services G:\Admin Reports\2007 Admin Reports\IS Winger Road Drain - Status Report FINAL CS.doc Harry Schlange, MBA Chief Administrative Officer

2 Infrastructure Services Page 2 of 4 Report No. IS Purpose of Report To provide Council with an update on status of the Winger Road Municipal Drain. Further this report asks Council to authorize payment to the Drainage Engineer (K. Smart and Associates Limited) for appearances on behalf of the Corporation at the Tribunal and Mediation hearing in the matter of the Winger Road Municipal Drain and to withhold any monies to private landowners within the affected watershed until such time as directed by the Ontario Drainage Tribunal or Referee. Analysis Background Administrative Reports PW dated July 12, 2004 and PW dated September 7, 2004 were received and accepted by Council. These reports provided background for the filing of the Section 4 petition and the retaining of the drainage-engineering firm of K. Smart and Associates Limited from Kitchener, Ontario. Copies of these reports are available in the Engineering office of Infrastructure Services. The Engineer s Report for the Winger Road Drain dated March 1 st, 2006 was filed with the Town Clerk on March 10 th, Under Administrative Report IS dated April 18 th, 2006, Council chose not to adopt the Engineer s Report. This report outlined the process and options for Council to continue with drainage works for the Winger Road Municipal Drain. On August 4 th, 2006 two landowners filed an appeal jointly with the Town Clerk, to have the Ontario Drainage Tribunal convene under Section 45, Subsection 2 of the Drainage Act, R.S.O. 1990, c17. This section of the Act deals with Council not adopting the Engineer s Report. On October 4 th, 2006 the Ontario Drainage Tribunal convened in the Town of Fort Erie Council Chambers to hear concerns and issues brought forward by the landowners and the appellant. The Ontario Drainage Tribunal s decision was filed with the Town Clerk and mailed to all landowners within the watershed and presented to members of Council at the October 31 st, 2006 Council Meeting. On November 20 th, 2006, Administrative report IS addressed options for Council to consider to continue the process under the Drainage Act as outlined in the Ontario Drainage Tribunal order. On November 27 th, 2006, Administrative report IS recommended to Council to table any decision until this issue could be decided by the Ontario Drainage Referee. Council tabled the report and any decision in this matter at that time. As such, the Town of Fort Erie was served an order to hold a mediation meeting on Monday, July 16 th, 2007, and further, if no resolution could reached, a court date of November 5 th and 6 th, 2007 would be set to hear the matter at the provincial court house in the City of Welland. Subsequently, one appellant has since withdrawn her request to the Ontario Drainage Referee on proceeding with this issue. This landowner currently has ownership of the first two properties on which the existing drainage watercourse traverses. By order of the Ontario Drainage Referee, a meditation meeting was held on Monday, July 16 th, 2007 in Committee Room 1. The Town s solicitor was requested by the mediator to

3 Infrastructure Services Page 3 of 4 Report No. IS bring forward to Council the outcome of the meeting. Mr. Stuart Ellis has prepared a paper for Council outlining the request as well as comments from a legal standpoint. (See Appendix 1) Mr. Ellis raises many points regarding what the municipality should do regarding the Drainage Engineer before deciding, whether to proceed or not with the recommended works within the Engineer s Report. Mr. Kuntze has attached his comments to Mr. Ellis s paper. (See Appendix 2) Another landowner in attendance at the mediation hearing, who is not satisfied with their assessment apportionment but understands the process to deal with their concerns, is in full support of the Engineer s Report as outlined in a letter addressed to the Drainage Superintendent. (See Appendix 3) Financial/Staffing Implications Under the provisions of the Drainage Act, the costs for the preparation of the Engineer s Report are assessed against all benefiting landowners and road authorities within the drainage area. Both the Ontario Drainage Tribunal and the mediator for the Ontario Drainage Referee have awarded costs to the drainage engineer to be paid out of general funds and not charged back to the landowner s within the Winger Road Municipal drainage area. The mediator requested that the Town of Fort Erie or a private landowner within the Winger Road municipal drainage area pay for the remaining appellant s benefit by cutoff apportionment of $3, and that no further assessment will be charged to this property. This was only suggested by the mediator after the Drainage Engineer, Mr. Kuntze, pointed out that there is no provision within the Drainage Act to make such an allowance. Also, the Drainage Engineer stated that the appellant s assessment could be handled/changed by the Court of Revision or the Ontario Drainage Tribunal, since the mediation came down to a monetary only settlement request by the appellant s solicitor. The total cost of this project is $53,000, of which $7,200 is the apportioned to the Town of Fort Erie and the Region of Niagara will pay $13,700. If Council decides to pay this monetary settlement to this landowner, Council should consider the other 9 landowner s who potentially could request the same consideration. This could amount to the Town of Fort Erie paying the balance of this project. Policies Affecting Proposal By-law No adopted Council s Corporate Strategic Plan. (Improve water flow in ditches and reduce surface flooding - D5). The Municipality s obligations, work and procedures with respect to Municipal Drains are legislated by the Revised Statutes of Ontario 1990 c.d.17 under the Drainage Act. By Council complying with the Ontario Drainage Tribunal Order and proceeding under the Drainage Act, landowners and agencies can appeal under the Drainage Act, as follows:

4 Infrastructure Services Page 4 of 4 Report No. IS Appeal from report to Referee Section 47(1) Any owner of land or public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that it does not comply with the requirements of this Act, or that the engineer has reported that the drainage works cannot be constructed under section 4, may appeal to the referee and in every case a written notice of appeal shall be served upon the council of the initiating municipality within forty days after the mailing of the notices under section 40 or subsection 46(2), as the case may be. Appeal to Tribunal Section 48(1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that, (a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof; (b) the drainage works should be modified on grounds to be stated; (c) the compensation or allowances provided by the engineer are inadequate or excessive; (d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed under section 3, may appeal to the Tribunal, and in every case a written notice of appeal shall be served within forty days after the mailing of the notice under section 40 or subsection 46(2), as the case may be. Comments from Relevant Departments/Community and Corporate Partners Comments have been received throughout the consultation process by all affected landowners within the Winger Road drainage watershed. Affected governmental ministries, environmental agencies and interested parties comments have also been considered in the preparation of the Engineer s Report for the Winger Road Drain. Alternatives It is not recommended that Council endorse payment to the remaining appellant, as per recommendations within this report, in the amount of $3, It is understood that other landowners within this watershed are not satisfied with their assessments and understand the process to address these concerns under the Drainage Act s Court of Revision and Ontario Drainage Tribunal. Attachments Appendix 1 Letter from Lampard, Ellis & Walsh dated July 24 th, 2007 entitled Winger Road Municipal Drain Appeal to Drainage Referee, Our File No Appendix 2 Letter from Lampard, Ellis & Walsh dated July 24 th, 2007 with comments from the Drainage Engineer embedded Appendix 3 Letter from Mr. Cote dated July 12, 2007

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