Dorey v. Municipal Property Assessment Corporation, 2016 CanLII 31810

Assessment Review Board

Commission de révision de l'évaluation foncière

ISSUE DATE: May 25, 2016

FILE NO.: WR 140192

Assessed Person(s): Margaret Jean Dorey and Eugene Stewart Dorey

Appellant(s): Margaret Jean Dorey & Eugene Stewart Dorey

Respondent(s): Municipal Property Assessment Corporation ("MPAC") Region 26

Respondent(s): Municipality of Lambton Shores

Property Location(s): 6640 East Parkway Drive

Municipality(ies): Municipality of Lambton Shores

Roll Number(s): 3845-460-050-14100-0000

Appeal Number(s): 3113127 and 3159169 (deemed 2016 appeal)

Taxation Year(s): 2015 and 2016 (deemed appeal)

Hearing Event No. 620829

Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31, as amended

Heard: April 15, 2016 in Grand Bend, Ontario

APPEARANCES:

Parties

Counsel⁺/Representative

Margaret Jean Dorey and Eugene Stewart Dorey

Self-represented

MPAC

Jane Sokol-Kennedy and Don Mitchell⁺

Municipality of Lambton Shores

No one appeared

DECISION OF THE BOARD DELIVERED BY DAN WEAGANT

INTRODUCTION

1The subject property lies on the shore of Lake Huron in an area known as Ipperwash Beach. It is comprised of a two-storey single detached dwelling with a total of 1,866 square feet ("sq. ft.") of living area. In addition, the dwelling has a carport and a separate cabin. The lot has a frontage on Lake Huron of 50 feet, with an area of 24,800 sq. ft. The main dwelling was constructed in 1920 and was added to and renovated in 2000.

2For the 2015 taxation year, MPAC returned a current value as of the valuation date of January 1, 2012, of $519,000.

3Margaret Jean Dorey and Eugene Stewart Dorey (the "Appellants") believe the value returned by MPAC is too high, owing to external effects of unrest and impacts to the use of the beach resulting from a dispute among various levels of government and a First Nation community to the east of the subject property. The Appellants therefore seek a lower current value of at least 10% to reflect the impact on the value of the property as a result of these local events.

4The Assessment Review Board (the "Board") must determine two things in this appeal. First, the Board must decide on the correct current value of the subject property. Second, the Board must determine, when reference is made to the assessments of similar properties in the vicinity, if the assessment of the subject property should be reduced for that assessment to be considered equitable.

DECISION

5The Board finds that the current value of the subject property is $519,000.

6With respect to equitable assessment when reference is made to the assessments of similar properties in the vicinity, the Board finds that the assessment of the subject property is reduced to $493,000.

7Accordingly, the Board finds that the assessment of 6640 East Parkway Drive is reduced from $519,000 to $493,000 in the residential tax class for the 2015 taxation year. This decision is deemed for the 2016 taxation year.

LEGISLATION

8In making its determination of these appeals, the Board must consider the relevant sections of the Assessment Act ("Act").

9Section 1 of the Act states:

"current value" means, in relation to land, the amount of money the fee simple, if unencumbered, would realize if sold at arm's length by a willing seller to a willing buyer.

10Section 19.(1) of the Act states:

19.(1) Assessment based on current value. – The assessment of land shall be based on its current value.

11Section 40 of the Act states:

40.(1) Appeal to Assessment Review Board. Any person, including a municipality, a school board or, in the case of land in non-municipal territory, the Minister, may appeal in writing to the Assessment Review Board,

(a) on the basis that,

(i) the current value of the person's land or another person's land is incorrect,

(ii) the person or another person was wrongly placed on or omitted from the assessment roll,

(iii) the person or another person was wrongly placed on or omitted from the roll in respect of school support,

(iv) the classification of the person's land or another person's land is incorrect, or

(v) for land, portions of which are in different classes of real property, the determination of the share of the value of the land that is attributable to each class is incorrect; or

(b) on such other basis as the Minister may prescribe.

12Section 44.(3) of the Act states:

44.(3) Same, 2009 and subsequent years. – For 2009 and subsequent taxation years, in determining the value at which any land shall be assessed, the Board shall,

(a) determine the current value of the land; and

(b) have reference to the value at which similar lands in the vicinity are assessed and adjust the assessment of the land to make it equitable with that of similar lands in the vicinity if such an adjustment would result in a reduction of the assessment of the land.

MPAC'S EVIDENCE

13Jane Sokol-Kennedy prepared a valuation report, detailing how MPAC arrived at the current value returned for the subject property. She took the Direct Comparison Approach to value, whereby properties nearby that had sold in proximity to the valuation date were compared to the subject property. The sale values of each of the properties in her comparison were time adjusted so that they could be compared to the subject property as though the sales occurred on the valuation date of January 1, 2012.

14Six comparable properties were selected, with sale dates ranging from September 2009 to September 2012. The time adjusted sale value of the six properties range from $216,237 for a property on the land side of West Parkway drive, to $823,061 for a property on the lake side of East Parkway Drive; the same street as the subject property.

15Ms. Sokol-Kennedy considered three of these comparables to be inferior in value to the subject property. One is considered superior to the subject property and the remaining two are considered to be relatively comparable in value to the property under appeal.

16Of the six properties selected for her comparison, Ms. Sokol-Keneddy considers two of the comparables to be the most comparable to the subject property for the purpose of determining its current value.

17The first of these is known as Sale B - 6530 West Parkway Drive which has a lot size and dwelling size that is similar to the subject property. It sold in September 2009. Like the subject property, Sale B has additional buildings, which are described as cabins. Ms. Sokol-Kennedy testified that there are five cabins on the property which is a significant determining factor in the sale value of Sale B and accounts for the difference between its time adjusted sale price of $616,672 and the current value of $519,000 for the subject property.

18The second most comparable property in Ms. Sokol-Kennedy's analysis is Sale E – 6638 East Parkway Drive. It lies next door to the subject property and is 18 years newer. The dwelling at Sale E is 655 sq. ft. smaller than the subject property and has no additional buildings on the lot. It sold in September of 2012, with a time adjusted sale price of $422,799.

19Ms. Sokol-Kennedy summarized her valuation study by indicating that it is her opinion that when the subject property is compared to the comparable properties, its current value assessment ("CVA") of $519,000 is reasonable when adjustments to the comparables are made.

APPELLANTS' EVIDENCE

20Mr. and Mrs. Dorey provided the Board with an informative account of the events over the last few decades that have taken place in the Ipperwash Beach area. According to the Appellants, unrest in the Ipperwash Beach area started in the 1980s with a "stand-off" between the local First Nations and the Provincial and Federal Governments over the ownership of the former army base which at that time was known as Ipperwash Provincial Park. Things escalated in the 1990s and the Appellants appealed their assessment and were successful in having their assessment reduced.

21In 2014 a further dispute arose over land claims over the beach itself, culminating in December of that year with the removal of barriers along the beach front. These barriers were formerly located along the limits of three road allowances that serve to provide public access to the Ipperwash Beach. Ms. Dorey indicated that these barriers were an important feature of the beach as they strongly indicated the distinction between the 'public' beach front; that being the area of the road allowance as it connected with the beach, and the private part of the beach which is essentially the rest of the Ipperwash Beach between Kettle Point and Stoney Point First Nations.

22In early 2015, discussions ensued between the cottage owners, the local Municipality and the local First Nation regarding the replacement of the barriers as it was thought that without them there would be an impact on the private areas of the beach and would have a negative effect on the residents' peaceful enjoyment of their property. Mr. Dorey was able to speak with some authority on this particular aspect of the developments as he was representing the Central Ipperwash Cottagers' Association at the meetings. According to Mr. Dorey, the discussions broke down shortly after they started and eventually resulted in the replacement of the former barriers, which were described as 'MTO type' steel and post structures, with four by four posts with rope strung between them. In Mr. Dorey's view these new barriers were an inadequate substitution for the more robust predecessors. He indicated that they do not stand up to the lake front weather and Mrs. Dorey was able to provide photographic evidence of their condition as of the Spring of 2016.

23The Appellants submit that there is a general stigma associated with the Ipperwash Beach area and that the value of the properties in the area suffers as a result. They believe that the events of the past few years, added to the uncertainty in the area regarding land claims and the recent return of the old 'army camp' to Stoney Point First Nation, and that the area property values are suffering, specifically due to two things. Firstly, the new barriers at the road allowances do not provide the same security as the former barriers. Secondly, the most westerly and easterly road allowances (West Ipperwash Road and Army Camp Road) are now controlled by the adjacent First Nation communities who charge for boat launching at these two locations. The third, middle road (Ipperwash Road) is now the only place in the area where the general public can launch a boat for free; thereby creating far more congestion, noise, activity and overall impact on the residents' enjoyment of their beach front lands.

24The Appellants concluded that these two factors have an impact of the desirability of their property over previous years and that in their opinion, they should have their property value reduced by at least 10%.

ANALYSIS

25With respect to current value, the Board has the valuation study completed by Ms. Sokol-Kennedy that includes sales information on six properties located near to the subject property. Of these six properties, the Board disregards the properties known as Sale A, Sale C and Sale D. These three sales are for properties that are not located on the beachfront. In her testimony, Ms. Sokol-Kennedy made it clear that a major determinant is establishing value for waterfront properties, like the subject property, is the size of the waterfront. As these three do not have water frontage, the Board considers them too dissimilar to the subject property for meaningful comparison.

26The Board agrees with Ms. Sokol-Kennedy that Sales B and E are comparable, but the Board also considers Sale F as being helpful in determining current value of the subject property. It has a waterfront of 78 feet as compared to the subject property's 50 feet. Its time adjusted sale price of $823,061 serves to highlight the extent to which waterfront impacts the value of residential properties in this area.

27The Appellants did not provide any documentary evidence to support their opinion that the CVA of the subject property should be reduced by at least 10%. While their concerns regarding the use and 'disturbance' in the broader community are no doubt important to them and create a general feeling of uncertainty in the long term value of their property, without evidence to quantify these impacts on the value of the property, their opinion is of no assistance to the Board in determining current value.

28The Board finds that the best evidence of current value for the property under appeal is that of MPAC's and accepts the results of Ms. Sokol-Kennedy's valuation study.

29With respect to equity, the Board has only the evidence of MPAC regarding the six properties included in the valuation study. When the assessments of these six properties are compared to their time adjusted sale prices, the resultant Assessment to Sale Ratios ("ASR") range from 0.88 to 1.12, with a median of 0.95. This result indicates that similar properties in the vicinity are generally assessed below their sale or market values. While MPAC did not make a specific submission with respect to equity of assessment in this case, this does not absolve the Board from making a determination on equity. The Board must use the best evidence available at the hearing for the purpose and uses the information available to do so.

30Accordingly, the Board finds that the CVA determined by MPAC is reduced by a multiplier of 0.95 to reflect the median ASR from the evidence available at the hearing.

DECISION

31The Board finds that the current value of the subject property is $519,000.

32With respect to equitable assessment when reference is made to the assessments of similar properties in the vicinity, the Board finds that the assessment of the subject property is reduced to $493,000.

33Accordingly, the Board finds that the assessment of 6640 East Parkway Drive is reduced from $519,000 to $493,000 in the residential tax class for the 2015 taxation year. This decision is deemed for the 2016 taxation year.

2016 DEEMED APPEAL

34An appeal for the 2015 taxation year is presently before the Board. Section 40.(26) of the Assessment Act provides that the appellant is deemed to have made the same appeal for the subsequent taxation year if the appeal is not finally disposed of before March 31 of the subsequent taxation year. The Board has not disposed of the 2015 appeal before March 31, 2016. For that reason, this decision also applies to the 2016 taxation year.

35Section 40.(26) of the Act directs:

Deemed appeals, 2009 and subsequent years

(26) For 2009 and subsequent taxation years, an appellant shall be deemed to have brought the same appeal in respect of a property,

(a) in relation to the assessments under sections 32, 33 and 34 for the year; and

(b) in relation to the assessment, including assessments under sections 32, 33 and 34, for a subsequent taxation year to which the same general reassessment applies, if the appeal is not finally disposed of before March 31 of the subsequent taxation year or, if an assessment has been made under section 32, 33 or 34, before the 90th day after the notice of assessment was mailed.