Decision and Order
IN THE MATTER OF AN APPEAL PURSUANT TO S. 50 OF THE ASSESSMENT ACT
CONCERNING:
Marie Peeters-Ney
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Assessor Of Area #01 - Capital
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Appeal No.: |
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Refer to as: |
Ney et al. v. Area 01 (2010 PAABBC 20100024) |
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Date of Decision: |
April 6, 2010 |
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Property: |
1520 Connie Road, District of Sooke |
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Heard: |
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Appearances: |
Philip Ney, for the Appellant |
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Guy McDannold, for the Respondent |
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Board Panel: |
Simmi K. Sandhu, Panel Chair |
INTRODUCTION
[1] The Appellants, Philip and Marie Peeters-Ney, are the owners of a property located at 1525 Connie Road in the District of Sooke (the “property”). The property is 147 acres in size.
[2] The Property Assessment Review Panel determined the property should receive split classification, wherein 15 acres were classified as class 9-Farm pursuant to the Standards for the Classification of Land as a Farm Regulation (the “Regulation”), while 132 acres were classified as class 1-Residential. The Neys appeal this decision and say that the entire property should receive class 9-Farm Class. The Assessor says that only 10 acres qualify for farm classification pursuant to the Regulation.
THE PROPERTY
[3] The property is not in the Agricultural Land Reserve but is zoned Rural RU-2, permitting residential subdivision into 10 acre lots. The majority of the area is forested. A cleared area of approximately 5.50 acres contains a bee yard, two dug ponds and plants of varieties of clover, honeysuckle and lavender, as well as grasses and weeds and Scotch Broom. There are also home sites accessed by a driveway area of approximately 5.50 acres. The improvements on the property include four single family dwellings, a garage and chicken house/storage building that houses laying hens, as well as a damaged greenhouse. The Neys reside in one of the residential dwellings, and two others are rented by tenants with another under construction.
[4] Prior to the 2009 assessment, 15 acres of the property qualified for farm classification. In May, 2008, the Neys submitted a farm application for agricultural production of eggs, herbs and apiculture and anticipated income from each. In July, 2008, the Neys advised the Assessor that only 6 of the 10 bee hives had been established by that time due to difficulty obtaining queen bees and cool weather. The Assessor inspected the property in February 2009 and found 6 hives and 22 laying chickens. In July, 2009, the Neys submitted to the Assessor a farm income return showing a total farm income from the eggs, herbs and honey of $595.
[5] The Assessor says that the property does not meet the requirements for farm classification set out in the Regulation, in particular 137 acres of the property is not necessary to the farm and is not predominantly used for primary agriculture production pursuant to sections 4(1) and (2) of the Regulation. Initially, the Assessor took the position that the provisions for developing farms, section 8, did not apply to apiculture. However, at the hearing, counsel for the Assessor conceded that bees are “livestock” within the meaning of section 8(1)(b) of the Regulation and, therefore, section 8 did apply to the property.
[6] The Neys say that bees are not “livestock” but are “bees” as defined by the Bee Act, R.S.B.C., 1996 and that they should instead be recognized as “horticulture” under section 8. The Neys request developing farm status and say that the entire property is necessary and predominantly used for primary agricultural production.
EVIDENCE, SUBMISSIONS AND ANALYSIS
1. Section 8 – Developing Farm
[7] Section 8 of the Regulation allows the Assessor to classify land as a farm although it is not yet in production or meets the income requirements in section 5, provided certain conditions are met. The section refers to products produced from primary agricultural production that are “planted” and to livestock, poultry, greenhouse or mushroom operations.
[8] The Assessor concedes that this section applies to the property as bees are “livestock”, but the Neys dispute this and say that “a bee is a bee”. Both parties agree that section 8 applies but disagree on how. I do not need to make a finding on whether section 8 applies to the property by virtue of bees being included as “livestock” or some other way. The parties agree that section 8 applies and I have no reason to find otherwise. However, the property still needs to meet other requirements of the Regulation, including section 4.
2. Section 4 – Is the land necessary to the farm and predominantly used for primary agricultural production?
[9] The Neys say that their long term plan is to establish profitable honey, pollen and nuc production, as well as an aquaculture operation, and have invested financial and other resources to this end. They submit the entire property is used for apiculture and rely upon expert testimony heard in Johnson v. Assessor of Area #19 2007 PAABBC 20070600 and the findings of the Board in that decision that bees forage widely and that natural forage is better than that which is planted. The Neys have planted and irrigate clover, lavender and mint, mostly in and around the bee yard. As such, the hives on the property are located adjacent to many natural pollen sources and water. In addition, the Neys have registered as an apiary with the Department of Agriculture and have a part time beekeeper, who testified at the hearing.
[10] The Assessor agrees that the cleared area of approx. 5.50 acres containing the bee yard and ponds and planted with clover, honeysuckle and lavender, are necessary to the farm and predominantly used, as well as the home sites with the chicken house/storage building and greenhouse, and the access area of approx. 4.50 acres, for a total of 10 acres. However, the Assessor says the remaining 137 acres does not qualify as this area is predominantly unused and forested, is not seeded or irrigated. Doug Burkinshaw for the Assessor testified that he spoke to an apiculture specialist at the Ministry of Agriculture and was advised the cultivated area that contained clover, honeysuckle, etc would be used by the bees and that dense forested areas can act as a physical barrier to the bees. This evidence is hearsay and I cannot rely upon it as expert evidence given that the apiculture expert did not present his opinion and evidence at the hearing and was not subject to examination. As such, the evidence is unreliable and I give it little weight in my determination.
[11] Dr. Philip Ney submits that the issue has been determined by the Board in Johnson, supra., where the Board accepted and relied upon expert testimony to find that natural forage was superior and that bees require a certain radius of land within which to forage. Dr. Ney says that this expert testimony should be accepted in this appeal. I am unable to rely upon the expert testimony or evidence produced in another appeal or hearing without that evidence being produced in this appeal to be properly admitted and subject to examination. Therefore, I find that this evidence is also unreliable and I can give it little weight.
[12] Dr. Ney testified to the importance of the bee industry to the environment and advised that wild forage, that is not planted or irrigated, is important for the development of colonies and between seasons. Wild forage, such as willow, salal, broom thistle, etc., are found on the property. In addition, the Neys have planted lavender, mint, clover, etc. and not just on the areas identified by the Assessor, confirmed by Dr. Marie Ney in her testimony. Dr. Ney estimated that 80% of the property is used by the bees “in one way or another”.
[13] I do not doubt that the Neys are legitimate farmers and have worked diligently to establish a viable apiary operation. However, in order for a property to obtain farm classification, the requirements of the Regulation must be met. In this instance, I am unable to find, on the basis of the evidence before me, that the 137 acres in question is “necessary” to the farm and is “predominantly used for primary agricultural production” as required by section 4(2).
[14] I accept that the bees may forage in the 137 acres and are not limited to the area that is cleared and planted, and that within that 137 acres there are plants that bees may use. I accept that wild forage may be superior as stated by Dr. Ney. However, the evidence does not establish that this area is “necessary” to the operation or that it is “predominantly” used for this purpose. Dr. Ney says that 80% of the property is used by the bees, however, there is no evidence to support this estimate nor to show that the bees “predominantly” use this area for their purposes or that the area is used for any other primary agricultural production. As indicated earlier, I cannot rely upon the expert evidence presented in another appeal and not before me. The Board’s decision in Johnson, supra., although of some assistance, does not determine the matter as it is a question of fact whether a particular parcel is “necessary” to the farm or “predominantly used for primary agricultural production”. The evidence in that case supported the factual findings of the Board with respect to that property. The Board had expert evidence before it, and evidence that up to 1000 hives existed on the property. Here, there are 6 hives and no expert evidence. I have no evidence of how much land is required for an apiary operation, or how much or which areas of the property the bees specifically use and for how long. The evidence is insufficient to prove that the requirements of section 4(2) have been met.
[15] There is still the question of whether section 4(3.1) may apply to give the Neys relief. This section states that a property not in the Agricultural Land Reserve may qualify for farm class if certain other conditions are met. For example, if the land has no present use, is neither specifically zoned nor held for business or commercial purposes, has a highest and best use that is not better than that of a farm, and is part of a parcel, a portion of which is used for primary agricultural production that makes a reasonable contribution to the farm, and meets the other requirements of the Regulation, it may qualify. Mr. Burkinshaw, for the Assessor and as an appraiser, testified that the highest and best use of the land not currently being used is greater than a farm, as evidenced by the zoning for residential subdivision of 10 acre lots. Dr. Ney responded that there have been no sales in the area and they have no intention to subdivide, therefore, the highest and best use of the land is its current use. The question of “highest and best use” is an appraisal concept and the legislation, in making reference to this concept, can only be interpreted in the appraisal context. It refers to the reasonable, probable and legal use of land which is physically possible, appropriately supported, financially feasible, and that results in the highest value. It is not limited to the current use of a property or the intention of the property owner but refers to the use that results in the highest value. Although I would have liked to see a supporting analysis, I accept Mr. Burkinshaw’s evidence as an appraiser that the highest and best use of the property would be the use contemplated in the zoning, namely residential subdivision, which is a use better than that of a farm, contrary to section 4(3.1)(b)(i)(A) of the Regulation. Even if this was not the case, I am not certain that the property would qualify under section 4(3.1)(b)(iii) which requires that the land is part of a parcel, a portion of which, comprising 25% or more of the total area, is used for primary agricultural production and is farmed by the owner and meets the other requirements of the regulation. However, this was not argued before me and I do not make a finding on this.
CONCLUSION
[16] The 10 acres identified by the Assessor qualifies for farm classification pursuant to the Regulation. The remaining 137 acres does not meet the requirements of section 4(2) of the Regulation as it has not been shown that the land is “necessary” to the farm and “predominantly used for primary agricultural production”. In addition, the 137 acres does not qualify under section 4(3.1) as the “highest and best use” of the property is better than a farm.
[17] The Assessor produced proposed values for the 2009 assessment for the property pursuant to the requested split classification. However, the Neys questioned the values and the increase in the values from the original assessment. As the hearing was limited to the issue classification only, I cannot make a finding on the values and the Board retains its jurisdiction on this issue.