Tribunals Ontario / Tribunaux décisionnels Ontario
Assessment Review Board / Commission de révision de l’évaluation foncière
ISSUE DATE: February 28, 2025
FILE NO.: WR 187442
Assessed Person(s): Infinity Aldershot Developments Inc.
Appellant(s): Infinity Aldershot Developments Inc.; c/o Arun Anand
Respondent(s): Municipal Property Assessment Corporation Region 15
Respondent(s): City of Burlington
Property Location(s): 56 Plains Road East
Municipality(ies): City of Burlington
Roll Number(s): 2402-010-111-11400-0000
Appeal Number(s): 3527437
Taxation Year(s): 2024
Hearing Event No.: 785774
Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31
APPEARANCES:
| Parties | Counsel/Representative |
|---|---|
| Infinity Aldershot Developments Inc. c/o Arun Anand |
Arun Anand |
| Municipal Property Assessment Corporation | Arik Mahler |
| City of Burlington | Paul Lacelle |
HEARD: January 15, 2025 by video conference
ADJUDICATOR(S): Anita Lovrich, Member
DECISION
OVERVIEW
1Arun Anand (“the Appellant”) is the owner of the property located at 56 Plains Road East (“the Subject Property”) and has filed an appeal pursuant to s. 40 of the Assessment Act, R.S.O. 1990, c. A.31 (the “Act”) for the 2024 taxation year. The ground of this appeal is that the current value of the Subject Property is too high, and therefore, is incorrect. He asks the Board to reduce it to $542,300.
2The Municipal Property Assessment Corporation (“MPAC”) is responding to these appeals and states that the correct current value is $933,000.
3The difference in the parties’ positions is attributable to their opposing views of the Highest and Best Use (“HABU”) of the Subject Property. MPAC argues that the HABU is mixed-use multi-residential while the Appellant says it is residential.
4A representative for the City of Burlington attended the hearing but did not make submissions.
Issues for the Hearing
5At issue in this proceeding is:
What is the Highest and Best Use of the Subject Property?
What is the current value of the Subject Property?
Is an equitable adjustment required pursuant to s. 44(3)(b) of the Act?
Result
6For the reasons that follow, the Board finds:
a. The Highest and Best Use of the Subject Property is improved residential.
b. The current value of the Subject Property is $554,000 (rounded).
c. An equitable adjustment is not required, resulting in a final determination of value of $554,000 (rounded).
ANALYSIS
Description of Subject Property
7The Subject Property is improved by a two-storey residential dwelling. The home was built in 1944 and has a total building area of 2,116 square feet.
8In 2023, the City of Burlington granted zoning approval to develop a multi storey residential building on the Subject Property and certain adjoining properties (the “Adjoining Properties”). As of the taxation year under appeal, no such development has occurred.
Issue 1 - What is the Highest and Best Use of the Subject Property?
Evidence and Submissions
MPAC
9MPAC testified that the Subject Property and Adjoining Properties are all owned by the Appellant and are awaiting a land-assembly consolidation for an approved high density multi-residential development. MPAC provided the Board with a 2023 Ontario Land Tribunal (“OLT”) decision, Infinity (Plains Road) Corporation v Burlington (City), 2023 CanLII 10078 (ON LT), approving zoning for a proposed development of a multi-storey residential building. MPAC testified that, due to these current approvals, the Subject Property would not transact on the market as an individual parcel of land but that the Subject Property and Adjoining Properties would most likely be purchased together by a developer for the purpose of developing the land.
10MPAC submits that in order to determine the HABU and current value of the land, one must consider the condition of the Subject Property as of 2023 but time-adjust the value to the statutory valuation day of January 1, 2016.
11For this reason, MPAC submits, the HABU of the Subject Property is mixed-use multi-residential development land.
Appellant
12The Appellant states that the Subject Property should not be valued as development land, as the approved development may or may not take place in the future. The Appellant’s position is that the Subject Property should be valued as residential land.
Analysis and Findings on Issue 1
13MPAC argues that the Board should consider the condition of the Subject Property as of 2023 but time-adjust the value to the statutory valuation day of January 1, 2016. This is sometimes referred to as the “state and condition” approach. The Board has rejected this approach in a number of recent decisions, including National Car Rental (Canada) Inc. v Municipal Property Assessment Corporation, Region 15, 2022 CanLII 53352 (ON ARB) (“National Car”). In National Car, the Board found that section 19.2 of the Act stipulates that a property’s value for each year in an assessment cycle, is based on one value, that being the value of the property on the specified valuation date (in this case January 1, 2016) and that a property’s value, which has been determined by MPAC in the general reassessment, is not reassessed for each of the taxation years in the assessment cycle: National Car, supra, paragraph 70. There are specific circumstances which may allow for a new valuation day within an assessment cycle, but those are not satisfied in this case.
14The Board relies on and adopts this analysis of the “state and condition” approach and rejects MPAC’s argument to consider the state of the Subject Property as of 2023. The valuation day for this appeal is January 1, 2016, and the Board shall consider the state of the Subject Property as it was on the valuation day.
15As explained by the Board in General Motors of Canada Co. v. Municipal Property Assessment Corp., Region No. 27, 2017 CanLII 3664 at paragraph 15, “[a] property is to be valued at what the market would view as the most productive use of the land because that is how it is most likely to transact.” This is the valuation principle known as highest and best use.
16To establish the HABU of land, “it must be determined which uses are legally permissible or possible, physically possible and financially feasible and from those potential uses determine which is the most productive use of the land”: see Enterprises Inc. v Municipal Property Assessment Corporation, Region 14, 2014 CanLII 104370 (ON ARB) (“Toronto Airways”) at paragraph 31. With respect to legal permissibility, it “considers the fact that certain restrictions like zoning, building codes, and environmental regulations may preclude certain potential uses”: see Canadian Tire Corporation Limited c Toronto (City), 2023 CanLII 80603 (ON ARB)at paragraph 24.
17MPAC submits the HABU is mixed-use multi-residential development land, and that this use is legally permissible due to the zoning change in 2023. However, there was no evidence before the Board that showed that this zoning was in place as of the valuation day of January 1, 2016, or that this re-zoning was even reasonably probable as of the valuation day. For this reason, the Board finds that MPAC has not satisfied it that mixed-use multi-residential development was a legally permissible use as of the January 1, 2016, valuation day. Moreover, MPAC has not satisfied the Board that a different valuation day applies under the Act, such that the zoning change in 2023 is relevant. Therefore, the HABU analysis for that particular use is discontinued: see Toronto Airways, supra at paragraph 41.
18Both MPAC and the Appellant have provided evidence that the use of the Subject Property is improved residential. Accordingly, the Board finds that the HABU is improved residential.
Issue 2 - What is the current value of the Subject Property?
Applicable law
Current Value
19Section 44(3)(a) of the Act requires the Board to “determine the current value of the land.” Section 19(1) of the Act states that “the assessment of land shall be based on its current value” and s. 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.” This means that the Board must determine what the Subject Property would have sold for on the valuation day.
20In general, the best evidence of current value would be the sale of the Subject Property on or close to the valuation day of January 1, 2016. If no such sale occurred, the Board will consider sales of comparable properties to establish the current value of the Subject Property.
Evidence and Submissions
MPAC
21MPAC provided evidence regarding the sale of three properties that “were all purchased with the intent to develop the lands with medium/high density developments” and time adjusted their sale prices to reflect what these properties would have sold for on January 1, 2016.
22MPAC testified that:
a. Proposed comparable sale 1, at 318 Plains Road East, was purchased with the intention to build two six-storey high density multi-residential condos. Prior to the development approval, it had a single-family detached home and motel on the land and these structures were removed several months after purchase.
b. Proposed comparable sale 2, at 35 Plains Road East, was purchased with the intention to build an eight-storey high density multi-residential condo and is located on the other side of the street from the Subject Property. At present, this project has been approved by the City of Burlington. This property is vacant land, which MPAC testifies lends itself to be the best indicator of value for high density development land within the Aldershot GO MTSA Special Planning Area.
c. Proposed comparable sale 3 is 330-338 Plains Road East which was purchased with the intention to build two six-storey high density multi-residential condominiums. Prior to development, this parcel supported a two-storey mixed use commercial/residential structure which was removed in early 2017. This comparable was also purchased with the intention to consolidate it with MPAC’s proposed comparable 1, 318 Plains Road East.
MPAC’s Proposed Comparable Properties and Sales Information
| Property Address | 318 Plains Road East | 35 Plains Road East | 330-338 Plains Road East |
| Sale Date | May 2015 | June 2015 | October 2015 |
| Sale Amount | $3,200,000 | $1,300,000 | $1,850,000 |
| Time Adjusted Sale Amount | $3,825,639 | $1,508,783 | $1,974,174 |
| Site Area (Acres) | 0.99 | 0.59 | 0.61 |
| Rate per acre | of $3,864,281 | $2,557,259 | $3,236,350 |
23MPAC testified that the average price per acre of the time-adjusted sale prices of its proposed properties is $3,219,297 per acre. Applying this to the Subject Property’s effective site area of 0.29 acres amounts to $933,596.32. MPAC testified that the current value should be $933,000 (rounded) based on the average time-adjusted sale prices per acre.
Appellant
24The Appellant submits that the Subject Property should be assessed at $542,300. In support of this position, the Appellant provided printouts of MPAC’s “My Neighbourhood – My Favourites” with comparisons of the Subject Property to six of its immediate neighbours along with their descriptions and assessed values.
25The Appellant testified that 50 Plains Road East and 56 Plains Road East are the most similar properties. 50 Plains Road East is assessed at $530,000 and since it is somewhat smaller than the Subject Property, he stated that the current value of the Subject Property should be slightly higher at $542,300.
Appellant’s Proposed Comparable Properties and Sales Information
| Property Address | 56 Plains Road East (Subject Property) | 46 Plains Road East | 40 Plains Road East | 50 Plains Road East | 62 Plains Road East | 66 Plains Road East | 70 Plains Road East |
| Sale Date | November 2012 | September 2014 | December 2012 | October 2015 | October 2013 | December 2014 | |
| Sale Amount | $350,000 | $1,805,000 | $552,000 | $520,000 | $483,000 | $482,000 | |
| Site Area (Acres) | 12,975 | 9,500 | 11,875 | 13,350 | 8,679 | 10,380 | 9,333 |
| Year Built | 1944 | 1948 | 1946 | 1952 | 1936 | 1910 | 1952 |
| Full Storeys | 2 | 1 | 1 | 2 | 1 | 1 | 1 |
| Quality of Construction | 6 | 6 | 6 | 6 | 6.5 | 6 | 6 |
| Building Total Area (Sq. Ft.) | 2,116 | 1,463 | 1,436 | 1,979 | 1,324 | 600 | 1,574 |
| Current Value Assessment | 786,000 | 506,000 | 510,000 | 530,000 | 529,000 | 483,000 | 482,000 |
26The Appellant testified that:
a. All of the Appellant’s proposed comparables are owned by the Appellant, all are still being used as residential units and should be utilized as the most comparable properties to the Subject Property.
b. MPAC’s proposed comparables are development properties which are not comparable to the Subject Property.
c. 318 Plains Road East had a motel on the property which is not comparable to the Subject Property.
d. 330-338 Plains Road East supported a two-storey mixed use commercial/residential structure which was removed in early 2017 and was a commercial property and is therefore not comparable to the Subject Property.
Findings on Issue 2
27The Board’s task is to determine the current value of the Subject Property as of January 1, 2016.
28The Board finds that the Appellant’s proposed comparable properties are the most comparable to the Subject Property. They are similar residential units in the immediate vicinity of the Subject Property. The Appellant’s proposed comparable properties are of comparable size and are very close in proximity to the Subject Property. The Board finds that MPAC’s proposed comparable properties are not comparable. MPAC’s proposed sales include vacant land, a multi-storey building, and a motel, which are not comparable to a residential dwelling. MPAC’s proposed sales are also further away, and they are all larger in effective site area than the Subject Property.
29The Appellant’s proposed comparable sales include a number of properties that are comparable to the Subject Property, but whose sales are too far removed from the valuation day to be reliable indicators of value as of January 1, 2016. However, the sale of one of the proposed comparable properties; namely, 62 Plains Road East, occurred on October 2015 near the statutory valuation day. The Board finds that the Appellant’s proposed comparable property at 62 Plains Road East is a comparable residential property that is in the immediate vicinity of the Subject Property, with a sale that occurred near the statutory valuation day. It is the only proposed comparable property with a sale near the valuation day. As a result, it is the only comparable sale the Board will rely on. Although it is slightly smaller than the Subject Property, it has a 6.5 construction quality compared to the Subject Property at 6. The Board finds that this sale is the best evidence before the Board for the purpose of determining the current value of the Subject Property using the direct comparison valuation methodology.
30Applying MPAC’s time-adjustment factors to the sale price of 62 Plains Road East of $520,000 gives a time-adjusted sale amount of $554,940.
31The Board therefore finds that the current value is $554,940.
Issue 3 - Is an equitable adjustment required pursuant to s. 44(3)(b) of the Act?
32Section 44(3)(b) of the Act directs 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
Appellant
33The Appellant did not differentiate in their evidence regarding current value and equitable adjustment. For this reason, the Appellant’s evidence, and submissions with respect to equitable adjustment is consistent with paragraphs 24-26, above.
MPAC
34MPAC provided an Equity Analysis Report reflecting an Assessment to Sales Ratio (“ASR”) analysis. The ASR of a sample of sold properties is a tool often used to determine if a property in the vicinity is assessed below its current value. If sold properties are being assessed below their current value, as demonstrated in an ASR less than 1.0, a reduction in the Subject Property’s assessment below the correct current value may be required to make the subject assessment equitable with the assessments of similar lands in the vicinity. The ASR is determined by comparing the assessment as returned to the time-adjusted sale price, expressed as a mathematical ratio. MPAC takes the position that equity is achieved if the median ASR falls between 0.95 and 1.05.
35MPAC relies on the sales of six multi-residential vacant lots that sold between January 1, 2015 and December 31, 2016 within six kilometres of the Subject Property. MPAC testified that the analysis reveals an ASR of 0.82, which means that the Board should reduce the current value to make the assessment of the Subject Property equitable with those of similar properties in its vicinity.
Findings on Issue 3
36The Board does not rely on MPAC’s analysis to determine whether an equitable adjustment should be applied because it is based on properties that are not sufficiently similar to the Subject Property as they are vacant land, land improved by a residential structure and a motel, or land improved by a mixed-use commercial/residential structure.
37The Board does not rely on the Appellant’s evidence to determine whether an equitable adjustment should be applied for the following reasons: All but one sale did not occur sufficiently near the valuation day for the Board to be confident they are reliable indicators of value. That leaves the Board with a single assessment with which to compare the Subject Property, and the Board is not satisfied that is sufficient evidence from which to determine whether an equitable adjustment is necessary. In the circumstances, the Board finds that the Appellant has not provided it with sufficient evidence to support an equitable adjustment to the current value.
38The Board finds that there is no evidence that an equitable adjustment to the current value is required.
CONCLUSION
39The Board finds that the correct current value is $554,940, and that an equitable reduction is not required such that the equitable current value is $554,000. (rounded).
ORDER
40The Board orders that the current value for the 2024 taxation year is reduced to $554,000 (rounded).