Page 10 - GBC English Fall 2019

10
Golf Business Canada
IMPACT TO YOUR BUSINESS
Expropriation is occurring rapidly throughout many provinces due to infrastructure spending being at an all-time high. Here are some simple but crucial points you need to know if your land or business is being taken by the government.5
Expropriation. The Supreme Court of Canada has stated that expro- priation is one of the ultimate exercises of governmental authority. While nobody enjoys having their land expropriated, it is very dif cult to stop an expropriation from happening. As such, the expropriated landowner’s focus should be obtaining full and fair compensation.
Compensation. Expropriated land- owners are entitled to fair compen- sation; this compensation should make them “whole” – that is, fully compensate them for all losses arising from the taking of their land. This can include compensa- tion for the land itself, compensa- tion for business losses, special dif culties in relocating your busi- ness and other damages that ow from the expropriation.
The Scheme. The expropriation “scheme” is the overall project resulting in the land taking or the steps taken by an expropriating authority leading to the eventual public project. The scheme can arise years or even decades before the expropriation comes to frui- tion. Identifying the scheme is important because it can be a start- ing point for pre-expropriation damages and other losses. While the scheme is ignored for the purposes of determining compen- sation for the fair market value of expropriated land, it is taken into account in other respects.
Full or Partial Expropriation. The government can acquire your entire property or simply a portion of your property. However, a partial expro- priation can have detrimental impacts on the use and value of your land. This concept is known as “injurious affection” – the permanent adverse impacts of an expropriation on land or a business on that land.
Expertise.Formulating a strong claim and navigating negotiations requires the expertise of land use planners, real estate appraisers, busi- ness loss valuators and legal counsel familiar with the specialized nature of expropriation matters. Land use planners assist in the valuation process by determining the “highest and best use” of the property and real estate appraisers are trained in determining the fair market value of the expropriated land based on other comparable property sales that have occurred in the marketplace.
Costs. To create fairness in the process, the expropriating authority is obliged to pay for reasonable fees for the assistance of legal counsel, real estate appraisers, land use planners and sometimes business valuation experts and engineers. Landowners should seek out these specialized experts to advise on the full extent of their claims as soon as they become aware of a public project involving expropriation.
Tax Implications. There are important tax implications arising from expropriation. For example, you may be entitled to a “rollover” under the Income Tax Act if you replace your expropriated property with a similar property. A rollover allows the expropriated landowner to bene t from deferred taxation of the replacement property instead of triggering a capital gain for the deemed disposition of the expropriated property. The advice of a tax accountant familiar with the rollover and replacement property rules can greatly assist in expropriation planning and such advice is usually paid for by the expropriating authority.
LAND USE PLANNING & ZONING BYLAWS
Land use planning helps municipalities manage land and resources and guides decisions about where: to build homes and factories; to put parks andschools;androads,sewersandotheressentialservicesareneeded.6 Land use planning helps each community set development goals while keeping social, economic and environmental factors in mind. It also balances the interests of individual property owners with the wider inter- ests of the whole community.
A zoning bylaw controls the use of land in your community. It states exactly: how land may be used; where buildings and other structures can belocated;thetypesofbuildingsthatarepermittedandhowtheymaybe used; and the lot sizes and dimensions, parking requirements, building heights and setbacks from the street.7
An of cial plan sets out your municipality’s general policies for future land use. Zoning bylaws put the plan into effect and provide for its day-to-day administration. They contain speci c requirements that are legally enforceable. Construction or new development that doesn’t comply with a zoning bylaw is not allowed, and the municipality will refuse to issue a building permit.