Tribunals Ontario

Tribunaux décisionnels Ontario

Assessment Review Board Commission de révision de l’évaluation foncière

ISSUE DATE: November 01, 2024

FILE NO.: WR 186993

Assessed Person(s): Joedy Burdett; Lynn Burdett

Appellant(s): Joedy Burdett; Lynn Burdett

Respondent(s): Municipal Property Assessment Corporation Region 18

Respondent(s): City of Niagara Falls

Property Location(s): 4622 Bridge Street

Municipality(ies): City of Niagara Falls

Roll Number(s): 2725-010-005-02600-0000

Appeal Number(s): 3518798, 3518812 and 3525866

Taxation Year(s): 2022, 2023 and 2024

Hearing Event No.: 784575

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

APPEARANCES:

Parties	Counsel/Representative
Joedy Burdett; Lynn Burdett	Joedy Burdett
Municipal Property Assessment Corporation	Michael Radan
City of Niagara Falls	Anthony Scaringi

HEARD: September 5, 2024 by video conference

ADJUDICATOR(S): Anita Lovrich, Member; Dan Weagant, Member

DECISION

OVERVIEW

1Joedy Burdett (the “Appellant”) has appealed the assessment of 4622 Bridge Street in the City of Niagara Falls (the “Subject Property”) for the 2022 taxation year pursuant to s. 40 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”). Appeals were deemed for the 2023 and 2024 taxation years pursuant to s. 40(26) of the Act (the 2022 to 2024 appeals together, the “Subject Appeals”).

2The Appellant argues that the value reflected on the assessment of the Subject Property, at $114,000 for the 2022 taxation year, $111,000 for the 2023 taxation year, and $48,000 for the 2024 taxation year (which the current value was changed to following a Request for Reconsideration process), is incorrect and inequitable. It is the Appellant’s position that these assessed values are too high, and the Assessment Review Board (the “Board”) should reduce them to reflect a total current value assessment (“CVA”) of $34,890.

3The Municipal Property Assessment Corporation (“MPAC”) is responding to these appeals. MPAC takes the position that the CVA, as of the valuation day of January 1, 2016, should be confirmed at $48,000 for all years under appeal.

4The Appellant submits that the classification of the Subject Property has changed from the Commercial property class, and the Vacant land subclass to the Residential class and that he wishes to amend his appeal to include property classification as an issue. MPAC argues that it has not received notice of the appeal on the basis of classification and it would be prejudicial towards MPAC for the Board to determine property classification as part of these appeals.

Issues for the Hearing

5At issue in this proceeding is:

1. Is the issue of classification properly before the Board?
2. What is the current value of the Subject Property as of the statutory valuation day of January 1, 2016?; and
3. Is the current value equitable with the assessments of similar lands in the vicinity and, if not, should an equitable reduction be made?

Result

6For the reasons that follow, the Board finds that the current value of the Subject Property is $35,000 in the Commercial property class, and the Vacant land subclass, for the 2022, 2023, and 2024 taxation years.

7The Board finds that there is no evidence to support a reduction in the current value determined for the purpose of an equitable adjustment.

8The Board also finds that the issue of classification of the Subject Property is not before the Board and is not an issue for the Board to determine in this appeal proceeding.

ANALYSIS

Description of Subject Property

9The Subject Property is vacant commercial land, comprised of 3,489 square feet with a frontage of 33.33 feet on Bridge Street in the City of Niagara Falls.

Issue 1 - Is the issue of classification properly before the Board?

Evidence and Submissions of the Parties

10The Appellant submits that the classification of the Subject Property should be changed to the Residential property class. In support of this submission, evidence of the issue was produced on September 3, 2024; two days before the hearing.

11MPAC submits that it had no notice of the fact that the Appellant would be making an appeal on the basis of classification and argues that it would be prejudicial of the Board to hear evidence and submissions and make a determination on the issue of classification because:

• the Appellant’s submissions on the issue were not received until two days prior to the hearing; long after any deadlines stipulated in the schedule of events for the disclosure of documents to be relied on at the hearing; and,
• MPAC has not been able to review and prepare a response to this new issue.

Findings on Issue 1

12The Board notes that the Appellant filed this appeal pursuant to s. 40 of the Act on the basis of incorrect current value and not on the basis of classification. The Appellant’s pleadings also do not speak to classification. Allowing the Appellant to raise the issue of classification at the hearing would violate the principles of procedural fairness and Rule 49 of the Rules of Practice and Procedure (the “Rules”) of the Board, which provides:

No New Issues

49. An issue can only be raised at a hearing event if it has been set out in the Statements of Issues and Response which have been served on all other parties and filed with the Board in accordance with these Rules, unless the Board determines that there are exceptional circumstances.

13As a result, the Board finds that hearing the issue of classification would be prejudicial to MPAC and violates the principles of procedural fairness and the Board’s Rules. MPAC did not have notice of this issue or the allegations and case to be met with respect to the issue of classification.

14The Board finds that the issue of classification is not properly before the Board and is not an issue for the Board to determine in this appeal proceeding.

Issue 2 - What is the current value of the Subject Property as of the statutory valuation day of January 1, 2016?

Applicable Law

15In accordance with s. 44(3)(a) of the Act, the Board must first determine “the current value of the land.” Section 1 of the Act defines current value as “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.”

16Accordingly, the Board must first determine what the Subject Property would have sold for in an arm’s length transaction on the statutory valuation day. The valuation day for the 2022, 2023, and 2024 taxation years is January 1, 2016.

17The best evidence of current value is the sale of the Subject Property on or close to the valuation day of January 1, 2016. If no such sale occurred, the Board considers sales of comparable properties to establish the current value of the Subject Property.

Evidence on Current Value

MPAC

18MPAC considered the sales of four proposed, comparable properties that it considered to be comparable to the Subject Property. MPAC performed a time-adjustment to reflect what these properties would have sold for on January 1, 2016. The details of MPAC’s property sales are provided in Table 1 below.

Table 1

	Subject Property	Property 1 4470 Bridge Street	Property 2 Erie Avenue	Property 3 4152 Bridge Street	Property 4 4638 Erie Avenue
Current Value Assessment	$48,000	$128,000	$175,000	$272,000	$399,000
Sale date		2021/07/20	2016/09/29	2017/05/25	2019/03/29
Time-adjusted sale amount		$119,834	$165,557	$203,153	$353,692
Time-adjusted sale amount per square foot		$28	$21	$14	$15
Effective site area (square feet)	3,489	4,147	7,840	13,803	23,185
Frontage (feet)	33.33	41.7	42	107	150

19MPAC testified that all four properties were either similar (in the case of 4470 Bridge Street and Erie Avenue) or superior (in the case of 4152 Bridge Street and 4638 Erie Avenue) to the Subject Property.

20MPAC testified that the comparable sales have time-adjusted sale prices per square foot of $28, $21, $14, and $15, with a median of $18 per square foot.

21Applying the median of $18 per square foot to the site area of 3,489 square feet amounts to $62,802. MPAC testified that, compared to the comparable sales, the Subject Property is a smaller piece of property with smaller frontage which limits what could be built on it and may require setbacks which would eliminate some of the site area for a potential structure. On this basis, MPAC applied a $15,000 adjustment to the value of $62,802 and submits that the current value should therefore be $48,000.

The Appellant

22The Appellant presented into evidence a copy of Ontario Regulation 592/22 Zoning Order - City of Niagara Falls, Regional Municipality of Niagara (the “Zoning Order”). The Zoning Order was passed in 2022 and outlines the division of the downtown core of the City into six zones. The Subject Property is in Zone CB4.

23According to the Zoning Order, properties in Zone CB6 (which includes 4638 Erie Avenue and 4152 Bridge Street) have a maximum building height of 132 meters while those in Zone CB4 (which includes the Subject Property and 4470 Bridge Street) remain unchanged at a maximum height of 33 meters. He testified that the properties in Zone CB6 are near transit and a train station, as shown by a map of the area. The Appellant submits that properties in CB6 are, therefore, in a superior location to those in CB4.

24The Appellant testified that MPAC’s proposed comparable Property 2 (Erie Avenue) should not be relied on as it is not a vacant lot, but rather, includes a building improvement. He testified that MPAC’s proposed comparable Property 3 (4152 Bridge Street) should also not be relied on because it is a larger lot (13,000 square feet), has a larger frontage, is located nearer to a transit station, and has a zone with a maximum permitted height of 130 meters.

25The Appellant testified that 4638 Erie Avenue is not a good comparator because it is larger than the Subject Property and is in a superior location at the corner of Queen Street, near City Hall.

26The Appellant submits that only MPAC’s proposed comparable property at 4470 Bridge Street, should be relied on by the Board as it is of similar size and is in a similar location to the Subject Property. However, instead of relying on the property’s 2021 sale as presented by MPAC, the Appellant presented into evidence a 2017 sale of the property. Details of that sale appear in Table 2.

Table 2

	Subject Property	4470 Bridge Street
Current Value Assessment		$128,000
Sale date		May 3, 2017
Time-adjusted sale amount		$44,095
Time-adjusted sale amount per square foot		$10
Effective site area (square feet)	3,489	4,147

27The Appellant submits that this proposed comparable property sale has a time-adjusted sale price per square foot of $10. Applying that to the effective site area of the Subject Property (3,489) amounts to $34,890, which the Appellant submits is the correct current value of the Subject Property.

Findings on Issue 2

28In determining the correct current value of the Subject Property, the Board must consider the best evidence at the hearing that represents the amount that the Subject Property would have sold for on the January 1, 2016 valuation day.

29In considering the proposed comparable property sales relied on by MPAC, the Board does not rely on the sale of Property 1 as the sale occurred in 2021; five years after the valuation day. The 2017 sale of the same property provides better market-based evidence of the Subject Property’s value as of the valuation day.

30The Board also does not rely on the sale of MPAC’s proposed comparable Property 2 based on the Appellant’s evidence that the property is not a vacant lot. This evidence was not contested by MPAC.

31The Board also does not rely on the sale of MPAC’s proposed comparable Property 3 as the property has a larger lot than the Subject Property with a site area of over 13,000 square feet, has a larger frontage, is one block from a transit station and bus terminal. This makes it significantly superior to the Subject Property and thus not a good comparator.

32The Board also finds that it is not appropriate to rely on MPAC’s fourth proposed comparable property sale of 4638 Erie Avenue as it is in a superior location on the corner of Queen Street near City Hall.

33The Board finds that the Appellant’s 2017 sale of proposed comparable Property 1 (4470 Bridge Street) is the most similar proposed comparable property to the Subject Property. The sale occurred within 17 months of the valuation day and the property has a similar site area, frontage, and location when compared to the Subject Property. 4470 Bridge Street has a time-adjusted sale price of $10 per square foot. The Board considers this to be the best evidence of the current value of the Subject Property.

34Applying the time-adjusted sale price per square foot of $10 to the Subject Property’s effective site area of 3,489 square feet amounts to $34,890. The Board finds that the correct current value of the Subject Property is $35,000 (rounded).

Issue 3 - Is the current value equitable with the assessments of similar lands in the vicinity and, if not, should an equitable reduction be made?

Applicable Law

35Section 44(3)(b) of the Act mandates that, after determining current value, the Board shall 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.”

Evidence on Equitable Adjustment

36At the hearing the Appellant presented no evidence in support of an equitable adjustment.

37MPAC argued that the Appellant did not present any evidence to support an equitable adjustment and stated that “MPAC finds that there is no issue with equity.”

Findings on Issue 3

38The Board was not presented with any evidence regarding an equitable adjustment. The Board finds that here is no evidence to support an equitable adjustment to the current value determined.

CONCLUSION

39The Board finds that the current value of the Subject Property is $35,000 for the 2022, 2023, and 2024 taxation years.

40The Board finds that there is no evidence to support a reduction in the current value to make it equitable with the assessments of similar lands in the vicinity.

41The Board also finds that the issue of classification of the Subject Property is not before the Board and is not an issue for the Board to determine in this appeal proceeding.

ORDER

42The Board orders that the assessment of the Subject Property be reduced to $35,000 for the 2022, 2023, and 2024 taxation years, in the Commercial property class, and the Vacant land subclass.