George Glenson McLachlan v. Municipal Property Assessment Corporation Region 04, 2021 CanLII 22014

Tribunals Ontario Tribunaux décisionnels Ontario

Assessment Review Board Commission de révision de l’évaluation foncière

ISSUE DATE: March 16, 2021 FILE NO.: ID 168542

Assessed Person(s): George Glenson McLachlan; Mabel Patricia McLachlan Appellant(s): George Glenson McLachlan Respondent(s): Municipal Property Assessment Corporation Region 04 Respondent(s): Township of McNab-Braeside

Property Location(s): 5 Peggs Lane Municipality(ies): Township of McNab-Braeside Roll Number(s): 4701-001-030-25910-0000 Appeal Number(s): 3386467 and 3397719 Taxation Year(s): 2019 and 2020 Hearing Event No. 738693

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

APPEARANCES:

Parties	Representative
George Glenson McLachlan	Roy Wood
Municipal Property Assessment Corporation	Tina Jamieson
Township of McNab-Braeside	No one appeared

HEARD: January 26, 2021 by telephone conference call

ADJUDICATOR(S): Subuola Awoleri, Member

INTERIM DECISION

OVERVIEW

1George Glenson McLachlan (the “Appellant”), the owner of 5 Peggs Lane (the “Subject Property”), appealed the 2019 assessment of the Subject Property to the Assessment Review Board (the “Board”) under s. 40 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”) on the grounds that the assessment is too high.

2Roy Wood, the Appellant’s representative, argued that the Subject Property is incorrectly assessed by the Municipal Property Assessment Corporation (“MPAC”) as a waterfront property and the current value assessment (“CVA”) of the Subject Property should be $402,000. Section 40(26) of the Act provides that “… an appellant shall be deemed to have brought the same appeal in respect of a property…if the appeal is not finally disposed of by March 31 of the subsequent taxation year....”. The Appellant is deemed to have brought the same appeal in respect of the 2020 taxation year.

3The Subject Property was assessed by MPAC as a waterfront property, with CVA of $527,000. MPAC requests that the Board confirms this assessment.

4At the completion of the hearing, the Board reserved its decision.

Issues for the Hearing

5The issues to be determined are:

1. Is the Subject Property correctly assessed as a waterfront property?
2. What is the correct current value of the Subject Property for the 2019 and 2020 taxation years?
3. Is the current value as determined by the Board equitable in reference to the assessments of similar lands in the vicinity?

Result

6The Board finds that the Subject Property is incorrectly assessed as a waterfront property.

7The evidence presented by the parties was insufficient for the Board to make a determination on the correct current value of the Subject Property.

ANALYSIS

Description of the Subject Property

8MPAC assessed the Subject Property as a one storey single-family detached dwelling located on water, built in 2018, located in the McNab-Braeside Township. It has a lot with 135 feet (“ft”) of effective frontage, an effective site area of 1.55 acres and actual site area of 1.9 acres. It has a total building area of 1,782 square feet (“sq. ft.”), with construction quality of 6.5 and a basement area of 1,546 sq. ft. of which 1,100 sq. ft. is finished. It has an attached garage and a shed.

Issue 1 – Is the Subject Property correctly assessed as a waterfront property?

9To determine the correct current value of the Subject Property, the Board must first determine if the Subject Property is correctly assessed as a waterfront property.

10The Board finds that the Subject Property is incorrectly assessed as a waterfront property.

11In Walker v. Municipal Property Assessment Corp., Region 16, [2018] O.A.R.B.D. No. 36 (“Walker”), MPAC assessed the property as a waterfront property with indirect access to the water and applied the corresponding downward adjustment to it for not having direct access to the water. Part of the issue the Board had to determine was whether the property was a waterfront property with indirect access to the water. To assist the Board in making this determination, MPAC referred the Board to three prior Board decisions: Love v. Municipal Property Assessment Corp., Region No. 25, [2003] O.A.R.B.D. No. 299 ("Love"), Zorzi v. Municipal Property Assessment Corp., Region. No. 25, [2004] O.A.R.B.D. No. 410 ("Zorzi") and Sinkins v. Municipal Property Assessment Corp., Region No. 25, [2003] O.A.R.B.D. No. 300 ("Sinkins"). In these decisions, the Board had to first determine if the properties were correctly assessed as waterfront properties before being able to determine current value. The appellants in these three decisions argued that the properties were not waterfront properties as they did not own the adjacent properties lying in between their homes and the water. However, they all had unrestricted access to the adjacent properties, thereby having access to the water. The Board determined that the appellants properties were correctly assessed as waterfront properties since they enjoyed current and ongoing use of the adjacent properties without any restrictions, making it a marketable and assessable feature of the properties.

12To be designated as a waterfront property, the Appellant need not own the abutting property lying between the Subject Property and the water, however, should enjoy a current and ongoing “use” of the abutting property to have access to the water, which makes it a marketable and assessable feature of the location of the Subject Property. In Walker, the appellant argued that he did not own the structures lying between the property and the water and he did not have a legal permit to use it. The appellant submitted that the property only has a view of the lake. The Board determined in paragraph 18 that:

on the balance of probabilities, it is more likely than not that the Appellant has access to the lake using these properties, which reveals that the Appellant enjoys the use and access to the lake using these properties regardless of their ownership. This as determined by the Board in the three cases cited by MPAC is in fact a marketable and assessable feature of the location of the subject property making it a waterfront property.

13In this appeal, there is a shoreline owned by Ontario Power Generating (“OPG”) for water control purposes, lying between the Subject Property and the Madawaska River. The Board has to determine if the Appellant has current and ongoing use of the OPG shoreline to access the water, to make it a marketable and assessable feature of the Subject Property’s location. MPAC provided in its valuation report that “the majority of properties on the Madawaska River have agreements with OPG allowing full access to the water and therefore all assessed as waterfront”. During cross-examination, Mr. Wood, the Appellant’s representative admitted that there is an OPG shoreline between the Subject Property and the water, however, he testified that the Appellant does not have legal access to it and cannot use it to have access to the water due to the cliff on the Subject Property.

Marketable and Assessable Feature- OPG Shoreline

14As determined in Walker, in order for the OPG shoreline to be a marketable and assessable feature of the location of the Subject Property, the Appellant need not own it, but should have unrestricted access and enjoy current and ongoing use of it to access the water. The parties agree that the Appellant does not own the OPG shoreline. Mr. Wood testified that the Appellant is not legally prohibited from having access to the OPG shoreline, however, access to the OPG shoreline is impossible for the Appellant and the Appellant has never accessed the OPG shoreline from the Subject Property, due to the cliff on it.

15A common feature of the decisions in Walker, Love, Zorzi and Sinkins, was the fact that the appellants had access to the water because they enjoyed current and ongoing use of the abutting properties lying between their property and the water. In this appeal, this is different. The Appellant does not enjoy current and ongoing use of the OPG shoreline, which is the abutting property lying between the Subject Property and the Madawaska River.

16Mr. Wood testified that the cliff on the Subject Property is a severe obstacle to access the water and there is no access to the water due to the height and shape of the cliff, which is approximately 100 feet high and has a sheer vertical drop to the water. He added that if a person jumps off the cliff into the water, which is extremely dangerous, it will be impossible to access the Subject Property from the water level. He also testified that the cliff is heavily treed and if one stands near the cliff, a little view of the water may be possible. Tina Jamieson, MPAC’s representative, also admitted that during inspection of the Subject Property she observed that the cliff is heavily treed.

17Ms. Jamieson testified that MPAC assesses a property as a waterfront property if it has a frontage that is fronting to a body of water and it does not matter if the Appellant cannot view the water from the Subject Property. She added that topography is one of the biggest determinants of whether a property is a waterfront property. She testified that topography includes the steepness of the land, the presence of a cliff on the land or the land may be slightly slope or steep slope. During cross-examination, Ms. Jamieson admitted that if there is a cliff on a property, depending on the type of the cliff, the property owner will not have access to the water unless stairways are installed on the cliff. She testified that she had travelled on Madawaska River to observe waterfront properties from the River and she observed that there are different types of cliffs which can make access to the water limited.

18Ms. Jamieson further testified that MPAC made a downward adjustment of $49,000 to the Subject Property’s assessment for the presence of the cliff. She argued that MPAC had assessed all other properties as being on Madawaska River and it would be unfair not to assess the Subject Property as a waterfront property. The Board finds that a downward adjustment to the Subject Property’s assessment does not justify assessing it as a waterfront property, if the Appellant is unable to access and enjoy the ongoing use of the OPG shoreline to access the water.

19Mr. Wood submitted that MPAC states on its website that a property is considered a waterfront property if it had direct access to a natural or manmade water such as a lake, river, channel or canal. He submits that direct access is not equivalent to proximity and that a potential buyer will never have access to the water from the Subject Property.

20The Appellant has never used the OPG shoreline to access the water from the Subject Property due to the 100 feet cliff on the Subject Property. A willing buyer on the valuation date, January 1, 2016, would also encounter the same issue. A designation of the Subject Property as a waterfront property presumes that a willing buyer will enjoy current and ongoing use of the OPG shoreline to access the water, which practically does not exist here.

21During cross-examination, MPAC referred the Appellant to another neighbouring property, which also has a cliff and is assessed as a waterfront property. Ms. Jamieson testified that the owner of this property constructed a stairway on the cliff to access the water. Mr. Wood objected, testifying that the current owner, is actually the subsequent owner, that the initial owner did not build the stairway, however, they were able to walk down to the water and walk back up due to the nature of the cliff and this is impossible on the Subject Property. Mr. Wood admitted that a stairway could be constructed on the Subject Property to access the water, but this will be capital intensive and a buyer will factor this into the purchase price.

22As of the valuation date, January 1, 2016, the Subject Property did not have a stairway. Section 36(1) of the Act states that …assessment of land shall be made annually at any time between January 1 and the second Tuesday following December 1. Section 36(2) provides that the roll shall be returned not later than the second Tuesday following December 1 in the year in which the assessment is made. Furthermore, as determined in General Motors of Canada Ltd. v. Municipal Property Assessment Corp., Region No. 27, [2017] O.A.R.B.D. No. 13, at paragraph 11:

Property is assessed each year as it was when the tax roll was returned to the municipality. The roll must be returned by the second Tuesday following December 1 of the previous year, so the state of the property on that date is determinative of the assessment.

23The state and condition dates of the Subject Property for the 2019 and 2020 taxation years were December 11, 2018 and December 10, 2019. On these dates the Subject Property did not have a stairway on the cliff to enjoy current and ongoing use of the OPG shoreline to access the water to be assessed as a waterfront property.

24The Appellant did not provide the Board with comparable property sales of non-waterfront properties, he advised the Board that he was not aware that he had to present this into evidence.

Finding on Issue 1 – Subject Property is not a Waterfront Property

25The Board finds that the Subject Property is incorrectly assessed as a waterfront property. MPAC only provided sales of waterfront properties. As the Board has determined that the Subject Property is incorrectly assessed as a waterfront property, there is insufficient evidence to determine the correct current value of the Subject Property.

CONCLUSION

26The evidence presented by the parties was insufficient for the Board to make a determination on the correct current value of the Subject Property.

ORDER

27The Board adjourns this hearing to allow the parties provide additional evidence.

28The parties are directed to submit any additional evidence in support of their comparable sale analysis, where the properties are not waterfront properties.

29The Registrar shall assign a new hearing date to these appeals, within six weeks of the issuance of this Decision.