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Couple loses property assessment challenge

Ed and Gail Kenney are calling it a setback, not a defeat.

The Wolfe Island couple learned this week that the potentially precedent-setting challenge to their home property assessment – based on the proximity of wind turbines – was unsuccessful.

“We’re quite emotional about this,” said Gail Kenney. “We feel that common sense has not prevailed in this issue. The ordinary person should be able to go to a tribunal without being opposed by these major law firms.”

The provincial Assessment Review Board heard the Kenneys’ case over the course of five days from last May to October.

The couple was fighting a Municipal Property Assessment Corporation of their waterfront home that increased it from $200,000 in 2008 to $357,000 in 2010 – after the turbines were installed on Wolfe Island.

They say the turbines have de-valued their property by bringing in “industrial” noise and lighting, as well as created health concerns.

The two-person panel from the review board disagreed.

Though assessment reviews are generally low key and informal affairs, the Kenneys found themselves presenting evidence against two lawyers – one from MPAC and another hired by their municipality, the Township of Frontenac Islands.

Gail Kenney said they often felt “overwhelmed” during the five days of hearings.

“We really felt we were in over our heads,” she said. “We had the feeling that the (wind turbine) industry was at the table and that was through the legal representation for the township.”

She said that when people live in a rural setting like Wolfe Island, then have “the second-largest wind farm in Canada” built beside them, “common sense would dictate that’s going to affect the property value. ”

At the outset of the hearings, MPAC lawyer Shawn Douglas insisted they should not be considered a test case for other properties near wind turbine projects.

The Kenneys said this week that another homeowner on Wolfe Island is challenging his assessment based on proximity to the turbines.

His hearing has been cancelled twice, they said, because MPAC told him they waiting for the outcome of their hearing.

“And this isn’t a test case?” Gail Kenney asked.

The Kenneys say that if they had won a lower assessment, it would have opened the door for hundreds or thousands of similar challenges and considerable losses of tax revenues to municipalities.

“Most of these reassessments are settled over the table,” said Ed Kenney. “It’s bad enough what it cost the taxpayers of Wolfe Island.”

The Kenneys, in fact, filed a freedom of information request with Frontenac Islands and learned that the cost to hire the Kingston law firm of Cunningham, Swan was just more than $37,000.

Work done by a real estate appraisal company cost nearly $10,000.

The Kenneys were charged $40 by the township to compile those figures.

Among the conclusions in the 41-page review board decision was the finding that property values had not dropped on the island because of the presence of the 86 turbines now owned by TransAlta of Calgary.

“The board finds there is no evidence to allow the board to conclude that since the construction of the wind farm properties on what Mr. Kenney defines as the west side of the island has sold for less than properties on the east side,” it reads.

John Andrew, a commercial real estate specialist in the School of Urban and Regional Planning at Queen’s University, said he isn’t surprised by the ruling.

“This all turns on one key point,” he said. “What are the criteria MPAC can use when determining assessment? Houses are all pretty comparable. All the things the Kenneys were talking about were external factors.”

Andrew said the review board would be creating a “slippery slope” by acknowledging that wind turbines devalue property value, much the same as having an airport or highway nearby.

Kenney hopes the ruling doesn’t discourage others from taking up the challenge.

They are consulting with a lawyer to determine what they should do next.

“We did what we made up our mind to do,” Gail Kenney said. “This decision does not change the reality of what’s happening on Wolfe Island. The reality is property values have gone down on Wolfe Island and people can’t sell their houses.”