One couple's battle against the tax assessment on their contaminated farm

Thursday, June 6, 2013

The Berendsens couldn't live on their polluted dairy farm near Teviotdale and they couldn't sell it, but they could rent the land out for field crops. For MPAC, that was enough to slap a
$479,000 valuation on the farm

by MARY BAXTER


How much is a contaminated farm worth?

According to the Municipal Property Assessment Corporation (MPAC), $479,000.

That's the 2012 value the provincial corporation put on Ben and Maria Berendsen's former 67-acre dairy farm near Teviotdale. The value, used to calculate municipal taxes, will be incrementally phased in over four years. Their taxes this year were based on a value of $247,000. The Berendsens bought the farm in 1981 and had to abandon it in 1994 when they discovered highway construction waste dumped there in the 1960s had infiltrated the groundwater. It was making them sick and killing their cows. For 17 years, the couple tussled with the province in the courts until they reached a confidential resolution in 2011.

The MPAC valuation comes as a surprise to Ben Berendsen, but it has not left him speechless. "We have tried for 17 years to sell it and as soon as you tell the owner's story, people backed off," he says. The couple has, however, managed to rent it out for field crops production – at about half of what Berendsen estimates is the area's going rate of $250 per acre.

Matt Stubbs, an MPAC municipal relations representative, says the corporation does take environmental problems on a property into account. When such an issue arises, property owners are asked to provide "any and all information that they have."

There is a note on the Berendsen property file about asphalt being dumped on the property but no other details, he says. There is no record of contaminated ground or well water.

Water tests that Berendsen commissioned in 1992 and were discussed in Ontario Superior Court of Justice documents showed unusually high levels of chemicals such as PCBs.

But Stubbs notes that, if the farm were contaminated, "then I would assume that they would not be able to farm it anymore." He points out that because the property is being farmed for cash crops, it does have a value – one based on the crops it can produce.  

Berendsen maintains the tax assessment is based on resale value, not on what they get from rent. "Here we rent out the farm. We cannot live on it; it's completely polluted, the water supply; and we have to pay taxes because it is rented out."

He is gravely concerned that there is so little documentation on file about the farm's contamination problems and fears a future property owner could get a nasty surprise.

He will appeal the MPAC assessment.

Federal environmental legislation requires such disclosure, he points out.

He explains that, although the Ontario Court of Appeal did not find the province liable in 2009, it was because of the time that had lapsed since the initial contamination occurred. Berendsen explains that a 2008 Ontario Superior Court of Justice decision regarding legal action that his family brought against the province concluded that the waste had contaminated the property's water supply. The judge had ruled in favour of the Berendsens but the decision was overturned by the Ontario Court of Appeal in 2009. The appeal decision alleviated the province of liability because of the amount of time that had lapsed since the initial contamination occurred. Berendsen points out, however, that the appeal court never addressed whether the property was contaminated. The family had received leave to appeal the decision with the Supreme Court of Canada but reached a settlement with the province in 2011 and dropped their case. "I think personally it's a shame that the courts and even the Crown lawyers did not make any clear decision how to deal with this polluted property," he says.

Bruce Whale, Mapleton's mayor, said in March that if the municipality takes possession of the property, "we would certainly have to make a potential buyer aware that there had been contamination issues and testing done and of course we would have to make sure through our own legal advisors that we weren't held liable if they did find something."

Berendsen notes that it's unlikely his is the only farm where buried road waste is causing grief. "That is the biggest concern. What about children, my grandchildren, 40 to 60 years down the road?" BF