Ontario Assessment Review Board ruling on wind power noise sets precedent

by Bob Aaron   Toronto Star

In a precedent setting move, a recently discovered decision of the provincial Assessment Review Board (ARB) has cut a homeowner’s assessment in half because the house is located near a noisy hydro substation. The hydro plant serves a nearby wind farm producing “clean” electricity.

The decision of ARB member Ana Cristina Marques was issued following an appeal by Paul Thompson of the assessment on his house.

Thompson’s one-storey home is located on the 10th Line in Amaranth Township. It was built in 1989 and sits on a lot with a frontage of 183 feet (55.7 metres) and a depth of 240 feet (73.15 metres).

In 2008, the Municipal Property Assessment Corp. assessed the 1,320-square-foot house at $255,000. Thompson agreed with the assessment except for one thing: The house sits across the road from a Canadian Hydro Developers transformer station. The station converts the output of the nearby Melancthon I wind plant into electricity for the Ontario power grid.

Thompson told me last month that the station emits a “wicked buzz” all day, every day, and that’s what prompted him to appeal his assessment.

Evidence presented to the board at Thompson’s appeal revealed that in April 2005, the township of Amaranth rezoned a 6.07 hectare (15-acre) parcel across the road from Thompson’s home for the purpose of construction of a transformer station.

The station was built 360 metres (1,181 feet) away from Thompson’s house. According to the Ontario Power Authority website, it serves the Melancthon I Wind Plant, a 67.5 MW facility in the southern portion of the Melancthon Township, Dufferin County, near the Town of Shelburne.

The first phase of the project utilizes 45 wind turbines. It became operational in March 2006, and the second and much larger phase (88 turbines) began producing electricity in March 2008.

The Ontario Power Authority website says that “manufacturers of modern wind turbines have … reduced noise levels to that of a quiet whisper.”

That may be so, but evidence at the ARB hearing showed that the power station associated with Melancthon I produced a constant hum measured at more than 40 decibels in Thompson’s home. (According to a 1999 World Health Organization report, sleep disturbance occurs when there is a continuous noise exceeding its indoor guideline value of 30 decibels.)

Thompson introduced evidence at the hearing showing that the transformer station noise was audible within the house with the windows closed. He described the noise as a “nightmare” and a constant nuisance that not only affects his day-to-day activity, but also impacts the sales value and marketability of his property.

In reaching its decision to cut his assessment in half, board member Marques wrote, “The Board finds that the constant hum alleged by Mr. Thompson does exist and significantly reduces the current value of the subject property. The best evidence is the audio portion of the CD (Exhibit No. 1) and the testimony of both parties.

“Having heard this nuisance, apparently sanctioned by the Municipality, the Board accepts Mr. Thompson’s testimony that the stigma of noise contamination has a negative impact on the value and marketability of the property, and that after learning of the hum, prospective purchasers will quickly lose interest in purchasing the property. The Board is satisfied that a very substantial reduction is warranted.”

As I see it, Thompson’s successful appeal of his assessment is only the first of many similar cases that are certain to follow. The result, of course, will be a significant reduction in the tax base of municipalities like Amaranth, which play host to wind turbine farms.

And now that the ARB, an arm of the Ontario government, has upheld a claim for loss of property value due to the proximity of a hydro substation and a wind farm, can a host of court cases and class action lawsuits for noise contamination and property devaluation be far behind?

Bob Aaron is a Toronto real estate lawyer and board member of the Tarion Warranty Corp. bob@aaron.ca.