Our Focus: Your Future WINGER ROAD MUNICIPAL DRAIN TO PROVIDE DRAINAGE WORKS

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Frederica Lloyd
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1 Town of Fort Erie Infrastructure Services Our Focus: Your Future Prepared for Council-in-Committee Report No. IS Agenda Date November 19, 2007 File No Subject WINGER ROAD MUNICIPAL DRAIN TO PROVIDE DRAINAGE WORKS Recommendation(s) THAT Council implements the Provincial Order as received by the Ontario Drainage Referee s office on November 9, 2007 dated November 5 th, 2007, and THAT Council implements the Ontario Drainage Tribunal Order dated October 20 th, 2006 to proceed with drainage works on the Winger Road Municipal Drain, and further THAT Council allows staff to proceed with the requirements of the Drainage Act and follow the Recommended Schedule-Figure 1 as indicated in this report. Relation to Council s Corporate Strategic Plan Priority: D - Infrastructure Goal: D5 Improve water flow in ditches and reduce surface flooding 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 BR/ces Ron Tripp, P. Eng Director of Infrastructure Services Harry Schlange, MBA Chief Administrative Officer

2 Infrastructure Services Page 2 of 5 Report No. IS Purpose of Report To advise Council on the process and options available under the Drainage Act, for works to be completed within the Winger Road Municipal Drain. Analysis Council will recall Administrative Reports IS provided on November 20,2006, IS provided on November 27 th, 2006 and IS provided on August 13 th, 2007 which gave significant details with regard to the Ontario Drainage Tribunal process and Order and ongoing status of this Municipal Drain. All of these reports are available to Council on the Town s website as a matter of public record and/or within the Engineering division upon request. Further to this matter and an appeal now processed through the Ontario Drainage Referee, an Order to the Council of the Town of Fort Erie has been received dated October 31, 2007 (attached as Appendix 1) which states: 1. It is ordered that the decision of the Tribunal in the appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by William Young and Sharon Young, Fort Erie, Ontario under Section 45 of the Drainage Act dated October 18 th, 2006 is hereby confirmed. 2. On consent, it is further ordered that there shall be no costs in this matter 3. The costs of the Municipality, including the attendance of the engineer at the proceedings before the Acting Referee shall be borne by the Municipality pursuant to Section 118 (2) of the Drainage Act. Under the Drainage Act legislation, Council must now adopt the Engineer s Report by a provisional bylaw for Drainage Works for the Winger Road Municipal Drain. The passing of the provisional By-Law will reactivate the process under the Drainage Act. The members of the Court of Revision must confirm/set a date for a Court of Revision meeting. Landowners can then file a written appeal to the Town of Fort Erie s Clerk to appear before the Court of Revision. The Court of Revision must be held between 20 and 30 days after the provisional Bylaw is sent out by mail to the benefiting landowners. This notice also outlines the recommended dates that the Municipality must follow to comply with the Drainage Act s timelines. The following Figure 1 highlights the process required by the Drainage Act and recommended dates:

3 Infrastructure Services Page 3 of 5 Report No. IS Recommended Schedule- Figure 1 Provisional By-Law for Winger Rd Municipal Drain November 26 th, 2007 Regular Council Meeting Notification Mailing of Landowners December 12 th, 2007 Court of Revision Between Jan.1, 2008 and Jan.11, 2008 Appeal Period begins from December 12 th, 2007 Deadline for filing of Appeals for the Drainage Tribunal and/or Drainage Referee Deadline for filing an appeal to the Ontario Drainage Tribunal regarding assessments from the Court of Revision Hearing Third Reading for Provisional By-Law if no appeals are received Tuesday, January 8 th, 2008 Monday, January 21st, 2008 Tuesday, January 29 th 2008 February, 18 th, 2008 Regular Council Meeting 1 st and 2 nd readings only Recommended Date 40 days from the date of the mailing of the Provisional Bylaw 21 days from the sitting of the Court of Revision Tentative 3 rd and Final reading All affected and interested parties listed under this Administrative Report IS and the Engineer s Report will be notified of the recommended dates as shown above. Financial/Staffing Implications Sufficient funding is available in the Winger Road Municipal Drain budget to pay the Engineer s costs to attend the Tribunal hearing, as ordered by the Tribunal s decision on October 20 th, Front end financing of this project will be required when all appeals have been addressed and the bylaw gets third and final reading. This project requires a budget of $53,000 to complete the works as outlined in the Winger Road Municipal Drain Engineer s Report. The Town of Fort Erie s apportionment is $7,200, which has already been budgeted for in previous years. It is anticipated this project will be able to move forward in 2008 which means a balance of $46,000 will need to be addressed under the 2008 budget deliberations by Council. 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. Future construction and maintenance will be apportioned as per the Engineer s Report to all benefiting landowners within the proposed Winger Road Drain Watershed. All construction work will be coordinated and supervised in-house by the Town s Drainage Superintendent with assistance from Infrastructure Services - Engineering and the Clerks Department Staff.

4 Infrastructure Services Page 4 of 5 Report No. IS Policies Affecting Proposal 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. The Purchasing and Tendering Policy By-law will be followed when proceeding with the construction of the Winger Road Drain. 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: 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. Landowner appeal to the Court of Revision Section 52(1) Any owner of land assessed for the drainage works who complains That any land or road has been assessed too high or too low or, That any land or road that should have been assessed has not been assessed, or, That due consideration has not been given as to type of use of land, may personally, or by agent, appeal to the Court of Revision by giving notice in writing to the clerk of the initiating municipality setting out the grounds of the appeal, and the appeal shall be heard by the Court of Revision. Appeal to Tribunal from decision of the Court of Revision Section 54(1) Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the Tribunal, given to the clerk of the initiating municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal within twenty-one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal.

5 Infrastructure Services Page 5 of 5 Report No. IS By-law No adopted Council s Corporate Strategic Plan. Section D5 outlines the objective to improve water flow in ditches and reduce surface flooding. Landowner s have exercised their rights under the Drainage Act to have drainage provided for them and also, their right to appeal the conclusions determined in the Engineer s Report as filed. Comments from Relevant Departments/Community and Corporate Partners Comments have been received through consultation with all affected landowners within the Winger Road drainage watershed. Affected government ministries, environmental agencies and interested parties comments have been considered in the preparation of the Engineer s Report for the Winger Road Drain. All necessary permits will be applied for prior to the commencement of any drainage works. It should be noted there are several landowners strongly opposed to a number of recommendations in the Engineer s Report. These landowners should be and have been encouraged to utilize the Drainage Act to voice any further concerns through the above mentioned appeal mechanisms. Alternatives There are no alternatives at this time as Council must continue with the process in accordance with the Drainage Act and adopt a provisional by-law with only first and second readings, as ordered by the Ontario Drainage Tribunal, dated October 20 th, 2006 and supported by the Ontario Drainage Referee Order dated October Conclusion Should Council decide to delay the Ontario Drainage Tribunal provincial Order, which is supported by the Ontario Drainage Referee, all costs to this project could be borne by the Municipality. Attachments Appendix 1 Ontario Drainage Referee s Order dated October 31, 2007.

Our Focus: Your Future

Town of Fort Erie Infrastructure Services Our Focus: Your Future Prepared for Committee-of-the-Whole Report No. IS-27-1-07 Agenda Date May 28, 2007 File No. 120905 Subject POINT ABINO ACCESS AGREEMENT