MARY McLOUGHLIN ASSESSOR OF AREA 06 - COURTENAY. Supreme Court of British Columbia (A952151) Vancouver Registry

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1 The following version is for informational purposes only, for the official version see: for Stated Cases see also: for PAAB Decisions SC 375 Mary McLoughlin v. AA06 MARY McLOUGHLIN v. ASSESSOR OF AREA 06 - COURTENAY Supreme Court of British Columbia (A952151) Vancouver Registry Before the HONOURABLE MR. JUSTICE COHEN (in chambers) B.W.F. McLoughlin for the Appellant J.E.D. Savage for the Respondent Farm Class -- Developing Farm -- Application Vancouver, November 30, 1995 The owner applied for developing farm class after failing to meet the income requirements for a number of years. Various steps had been taken to increase production but the required threshold had not yet been met. HELD: The Board had evidence that the Appellant applied to the Assessor under section 7 to have the land classified as a farm and that the Appellant submitted a plan establishing that the Appellant is developing a farm that will meet the standards specified in section 3(1) as required by section 7(2)(a). The Assessor received the application in time, therefore the conditions of section 7(2)(b) had been met. With respect to the condition of section 7(2)(c), the Assessor was satisfied that the land was being developed as a farm because he was prepared to classify the land as a farm for the 1994 assessment year subject to the Appellant reaching the necessary requirements in The Assessor changed his mind only after the Appellant rejected the condition, but in any event, there is no jurisdiction for the Assessor to impose such a condition. Reasons for Judgment December 15, 1995 This is an appeal by way of Stated Case from a decision of the Assessment Appeal Board (the "Board") pursuant to section 74(2) of the Assessment Act (the "Act"). The Stated Case sets out the following facts and the questions upon which this Court is asked for an opinion: 1. The appeal before the Board was from the decision of the 1994 Court of Revision denying farm classification to the subject property. The only issue before the Board was whether the property was entitled to farm classification pursuant to section 28 of the Assessment Act and B.C. Reg. 298/85, Standards for the Classification of Land as a Farm.

2 2. The subject property consists of two adjoining parcels of land of approximately 18 acres in total, located on the Strait of Georgia north of Comox. The subject property has 1,040 feet of waterfront and a depth of 1,300 to 1,400 feet. It is zoned RUI (residential) and is not in the Agricultural Land Reserve. 3. The first application for developing farm status for the subject property was made in Developing Farm status was granted in 1980 and remained in place until 1993 when the Assessor removed it on the grounds that the Appellant had been given reasonable time to develop the farm but had failed to meet the minimum farm income threshold. 4. By application dated June 30, 1993 the Appellant applied for approval of a farm development plan. The plan was to develop a Filbert Nut Orchard and a Rare Plant Nursery. The application was denied by the Respondent Assessor. 5. In 1993, the income threshold for farm classification was increased from $1,600 to $2,500 per year. 6. The Board found that the increase in the income threshold from $1,600 to $2,500 was not intended to give applicants a second chance to become an emerging farm but was due to inflationary factors. 7. The Board found that the subject property should not qualify for farm classification and dismissed the appeal. 8. Attached hereto as Schedule "A" is a copy of the Board's decision dated May 30, THE QUESTIONS which the Board is required to ask for the opinion of the Supreme Court are: 1. The evidence having established the facts required by s. 7(2) of the Regulation, was the Assessment Appeal Board wrong in failing to direct the Assessor to classify the land as farm? 2. Was the Board correct in concluding this Legislature's intention, when it increased the income threshold from $1,600 to $2,500, was to prelude a new application under s. 7 of the Regulations, B.C. 298/85 for farm status? 3. Was the Board correct in concluding the Appellant has had since 1974 to meet the required statutory threshold and has not done so? 4. The Board found the facts contrary to the evidence? The Board set out its decision at p. 6 as follows: The Board finds that the Subject should not qualify for Farm classification for the following reasons: 1. It is inconceivable that the legislature intended to give applicants a second chance to become an emerging farm by increasing the income threshold to $2,500. Rather, the Board believes that the change was due to inflationary factors. 2. The Appellant has had since 1974 to meet the required statutory threshold and has been unable to do so.

3 The law which governs this Court's jurisdiction is set out in the following authorities. In Kebet Holdings Ltd. v. Assessor of Area 12 - Coquitlam (1987), 13 B.C.L.R. (2d), at pp , Cumming J. (as he then was) said: Duty of the court In Crown Forest Indust. Ltd. v. Assessor of Area 6 - Courtenay (1985), B.C. Stated Cases, case 210, Southin J. said at p. 1191: So long as the Assessment Appeal Board which must, in deciding appeals to it, apply the Act does not: 1. misinterpret or misapply the section - see Pacific Logging Co. Ltd. v. The Assessor [1977] 2 S.C.R. 623 adopting the dissenting judgment of McIntyre J.A. in the Court of Appeal 12th November, 1976 (unreported); 2. misapply any applicable principle of general law... or 3. act without any evidence or upon a view of the facts which could not reasonably be entertained this Court has no power to intervene. On the third proposition, which is fundamental to the appellant's case, see: (a) Edwards v. Bairstow [1956] A.C. 14 (H.L.) at 29: "For it is universally conceded that, though it is a pure finding of fact, it may be set aside on grounds which have been stated in various ways but are, I think, fairly summarized by saying that the court should take the course if it appears that the commissioners have acted without any evidence or upon a view of the facts which could not reasonably be entertained." A further extract from the speech of Lord Radcliffe in the Bairstow case [Edwards v. Bairstow, [1956] A.C. 14, [1955] 3 W.L.R. 410, [1955] 3 All E.R. 48 (H.L.)] warrants citation (p. 36): When the case comes before the court it is its duty to examine the determination having regard to its knowledge of the relevant law. If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination. So there, too, there has been error in point of law. I do not think that it matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. In B.C. Hydro & Power Authority v. Assessor of Area 05 - Port Alberni (1990), B.C. Stated Cases, case 297, Hood J. said at p. 1725:

4 It appears that Justice Southin followed Edwards in Crown Forest and, of course, I am bound by her decision. I have no way of ascertaining at this time whether she intended to expound two separate tests or questions of law in item (3). However, it appears from a reading of his decision in Canadian National Railway Company, that Lander J. was of the opinion that two separate tests or points of law were referred to in item (3), being the absence of evidence on the one hand and an unreasonable view of the facts in evidence on the other. Hence, for my purposes, I will assume that both justices held, or were of the view, that it is a question of law whether or not the Board's view of the facts could reasonably be entertained and that I have jurisdiction to set aside the Board's findings if I am of the opinion that they cannot reasonably be entertained. The relevant section of the Act for purposes of deciding this appeal is section 28: Classification of land as a farm 28. (1) An owner of land who wants all or part of it classified as a farm shall apply to the assessor using the application form, and following the procedure, prescribed by the commissioner. (1.1) Subject to this Act, the assessor shall classify as a farm any land, or part of any parcel of land, that meets the standards prescribed under subsection (2). (2) Subject to the approval of the Lieutenant Governor in Council, the commissioner shall prescribe standards for classification of land as a farm. Pursuant to s. 28(2) standards have been prescribed for the classification of land as a farm. The relevant sections of B.C. Reg. 298/85 Standards for the Classification of Land as a Farm (the "Regulations") are as follows: Classification of land as a farm 3. (1) In order for land to be classified as a farm, the application made under section 28(1) of the Assessment Act must be submitted on or before October 31 and must show that the primary agricultural production on the land by the owner or lessee has been produced and sold in either the 12 month period ending October 31, or in the preceding 12 month period, and had a gross value of production at farm gate prices of at least (a) where the area of land is 4 ha or less, $2,500, but, where land is less than 8 000m², the assessor must be satisfied the owner earns the greater part of his livelihood from the primary agricultural products produced on the land, or (b) where the area of land is more than 4 ha, $2,500 plus 5% of the actual value of the land for farm purposes in excess of 4 ha. (2) Notwithstanding subsection (1)(a) and (b), the assessor shall classify land as a farm provided the application form referred to in subsection (1) shows that on or before October 31 of the year preceding the year for which the assessment roll is prepared the following conditions will be met: (a) in the case of crops that require 2 to 5 years to establish before production can occur, there is a sufficient area prepared

5 and planted to meet the requirements of subsection (1)(a) or (b) when production occurs;... Approval of a farm development plan 7. (1) In this section "capital expenditure" means (a) expenditure related to land clearing and preparation, drainage and irrigation, but not for the purchase of land, (b) expenditure related to the construction of farm outbuildings and structures, but not to the construction of a dwelling or ancillary improvements, and (c) expenditure for the purchase of livestock, machinery and equipment on the farm and which is necessary for the farm operation. (2) The assessor shall classify land as a farm where each of the following conditions is met: (a) the owner of land applies to the assessor to have the land so classified and submits a plan establishing that he is developing a farm that will meet the standards specified in section 3(1); (b) the assessor receives the application and the plan before October 31; and (c) the assessor is satisfied that the land is being developed as a farm unit and that at least 50% of the capital expenditure to implement the plan has been made on or before October 31 of the year preceding the year for which the assessment roll is prepared. (3) For this section, annual crops planted but not harvested before October 31 form part of the development plan. (4) The time frame to meet the income requirements may vary. In my opinion, the Board's decision is wrong in law. The Board heard evidence from Mr. D.M. Klatt, (the "Assessor") an employee of the B.C. Assessment Authority responsible for the valuation of all properties within the village of Cumberland, the commercial properties within the City of Courtenay and the maintenance of the classification of farms throughout this area to the top end of Vancouver Island, including Powell River and the outlying Islands. In chief, he testified: A Beginning in 1974, a very well detailed and researched farm plan was submitted to the Assessment Office in view of receiving farm classification as a developing farm. Now in this plan, going back far as 1974, it indicated that pest control may present annual problems. This was

6 something that Mr. McLoughlin seemed to be aware of even back in Some production was expected after the third year, and commercial quantities after five to six years. Full production at ten to twelve years. At that time the 1981 projected income was $7, That farm plan was not accepted. I understand that it went through the Assessment Appeal Board and the appeal was denied. In November of 1975, 500 trees were planted. In May of 1976 a further 250 trees were planted. In 1978 a second farm plan was submitted as an application to be classified as a developing farm. This application indicated problems in past, now I understood he would be talking about the years 1974 through to 1978, that he had had problems with drainage, irrigation, deer damage, requiring the replacement of a number of trees. Drainage, irrigation and fencing around individual trees was understood to have been done at that time. The income projection from this farm plan indicated that in 1982, '83 there was a projected income of 2,000 to $5, The income projection in 1984 to '85 was expected to be 8,000 to $10, There was a note that on January 13th, 1978 there was a reply from B.C. Hydro regarding the inquiry about power for electric fencing, so even as far back as 1978 electric fencing perimeter fence was discussed. Another note dated July 13th, 1978, apparently there was a debate regarding fencing the entire field or individual trees. In 1979, I understand it to be 1979, it may have been 1980 but the dating of this indicates that it should have been 1979, that the developing farm status was granted. MR. McLOUGHLIN: It was A. The reason I understood that was since the farm plan was 1978 it would have made sense that it was 1979, but it may have been 1980 that the developing farm status was granted. I don't have a record of that. There were more records from March and April of '88 showing tree replacement. In July and August of '88, repair because of damage from the deer, and the furthest back our records would show about harvest was October of 1988, 600 pounds was harvested. In March and April of 1989 it was frost damage then to the trees, and more trees were replaced. In July, August of 1989 it became Stellar Jays. In September, 1989 metal plates were tied around trees for raccoon and squirrel protection, and we understood there to be bear damage in In October, 1989 the harvest was apparently negligible. In March and April of 1990 more trees were planted, and in July and August, 1990 bird protection devices were installed, more metal plates were installed and more Stellar Jays arrived. September, 1990 severe bear damage. October 1990, minimal harvest. March, April 1991, more trees were planted, and May, June 1991 battery operated radio set up for bear protection. September '91, now there was tree damage from wind storm. October, 1991, there were more comments regarding the need for electric fences, or electric fence, at an estimated cost of $5, Harvest resulted that year in an income of $ and March, April '92, new trees were planted. September '92, more bear damage and the Stellar Jays returned. October, 1992, harvest resulted in income of $ In 1993, the Court of Revision, the farm classification was removed for the 1993 roll year due to a lack of farm income and because the development plan was not completed. And at this point the property would have had farm status for at least twelve years without ever having attained the minimum farm income standard. June of 1993, a third farm plan was submitted as an application for classification as a developing farm. An application for farm classification was also submitted based on Section 3 of the standards for classification for farm land, so at that time actually two applications were made, one under Section 7 and one under Section 3. The farm plan included plans to install an electric fence, not the first time we'd heard this plan, to discourage bears, at an estimated cost of $2, Plans to install metal plates to discourage raccoons. We had understood these metal plates had been installed many years before. Plans to purchase the wailer to discourage bears.... A And then turn to page 7, and I had to deal with Section 3 of the farm standards. Now, initially in speaking with Mr. Warner he seemed to indicate that the production should be there

7 next year, and my initial reaction was well, okay, we've got an expert here, a horticulturalist who says the production should be there next year and I felt that the area has been prepared and it's been planted and therefore we can expect the production within two to five years and that would be reason enough to grant farm classification. However, under further review and in trying to further understand the legislation I've come to a different conclusion. Farm classification should not be granted for 1994 under Section 3 of the farm standards for the following reasons: The property was initially prepared and planted in 1975 and had enjoyed farm classification for approximately fourteen years -- let's change that, if it was 1980 to 1992 I guess that would be what, thirteen years? MR. McLOUGHLIN: Twelve. A Well inclusive, 1980 to 1992 would be thirteen years, I believe, without ever having produced sufficient agricultural products to attain even the minimum farm standards, and the property should have been capable of producing adequate farm produce by 1983, '84, except for either poor farm management or circumstances beyond the control of the owners. These include problems with drainage, irrigation, problems with deer, frost, I understand snow, jays, squirrels, raccoons, bears, wind storms, and now pollination. The potential for adequate production is present today, just as I believe it should have been for the past ten years. A review of the history of the operation would indicate that there is also very real potential for crop failure. Even in 1994, and this is not written down here, but even in 1994 there was a crop failure due to a combination of an act of God and poor management. Poor pollination and nuts falling to the ground before being harvested resulted in only 150 pounds of product, so once again, we wouldn't have had this information in 1993 had we granted the farm classification, but now in retrospect we see that it was probably a good decision, because in -- now that we have that information we find once again this property was unable to produce the required income due to a combination of problems. In cross-examination, he testified: Q Now, you heard Mr. Warner and you did tell us that you spoke to him and as a consequence of speaking to him you agreed that this is a farm and we're going to grant farm classification for '94, right? A Q Could I elaborate on that conversation? Please do. A It was our intention not to put this property in farm classification, we felt it was not deserving of farm classification, and we were doing whatever we could to keep it out of farm classification because it had never met the income requirements. I thought well, I felt it would be good to have evidence from a horticulturalist so I phoned up Gary Ralston in Courtenay here to ask him what did he think of it, or maybe come out and take a look at the property. As it turns out you had already phoned them earlier and that had already occurred with Brent Warner, so I phoned Brent and I asked him what did he think and he's not here to vouch for that but he said that everything was in place there, he didn't feel there was any reason to believe that the crop couldn't be made in 1995, the trees were in place, he felt that was a possibility, a very real possibility. I felt based on what he was saying, I thought well, with the legislation the way it was reading in Section 3(2)(b) I believe it was where it mentions you have two to five years, once a crop has been -- or once the property is prepared and planted you have a period of two to five years in which to receive that farm class I thought well, it looks like we'll have to grant the farm status if it looks like that crop is going to pan out. However, the weekend went by, we -- you thought about it again, decided you -- Q You remember phoning me and talking to me?

8 A Yes, and I mentioned that, that you know, I felt that, you know, although I don't feel I want to grant classification I felt legally I was bound to, and I also mentioned that I was very hesitant in it and that if you wanted to go with emerging and developing classification that I would certainly be reconsidering this, because I did not want to grant emerging and developing under any circumstances, so -- Q My only question to you sir, was -- A Okay. So I'm just going over that, you said I could. So once you decided you definitely wanted emerging and developing and you didn't want to be granted farm status under Section 3, I looked at that again, I maintain I still didn't want to grant it under Section 7, and when I looked at Section 3(2)(b) again I realized that this property had all along had that two to five year period, it wasn't farm classification, so it basically had already been given that leeway, and I thought well, you had that chance and therefore in reconsideration I felt that it did not qualify under Section 3(2) and that's why I at no time ever said I would give it -- grant it developing farm class and that's why I changed my mind on granting farm class under Section 3. Q You changed your mind after I phoned and said I will not accept your suggestion of making it farm in '94 subject to reaching the necessary requirement in '95, it was after that that you decided to come out to the farm and look at it, is that right? A Yes, after you decided you only wanted emerging, you didn't want the other, that's when I reconsidered. Q But you do accept what Mr. Warner says, that there is sufficient area now planted to produce the minimum required by -- within two to five years? A Well that's the whole point, it could have been produced this year except for the -- Q Just answer my question. Do you agree, sir, that in view of what Mr. Warner has said, there is sufficient area planted to produce -- A Oh yes, I believe that there's a possibility that sufficient crop could be produced there. Q Thank you very much. And I think you've already indicated you feel it is a developed farm as opposed to a developing farm so you're not arguing that the property is not being developed as a farm? You agree it is being developed as a farm? A No, I -- actually, semantics are very important. I do not believe it's being developed as a farm. I believe it was developed as a farm and it was unsuccessful. Q A Q filed? A All right. But developed as a farm has occurred in your view? The development has all occurred. And you agree sir, that on June 30th, '93 the application for developing farm status was Yes.

9 Q And the chap in '92, do you remember who he was? Well, it's all right. Don't worry about it. I'm not going to take up the Court's time for you to find that. Now, in the week preceding, I think it was Thursday before the long weekend, you and I had a discussion in which you said something to the effect of yes, you can have farm status for '94 and I said I'll think about it and I phoned you on the Tuesday or left a message that I wouldn't agree and it was after that you came out? A That's correct. Mr. G.B. Warner, Provincial Specialist in specialty crops and direct farm marketing for the B.C. Ministry of Agriculture, Fisheries and Food, said in chief: Q So having examined this orchard, can you tell the panel what you expect the production should reach within the next several years? A Okay. Based on the tree numbers which you provided both myself and the panel as to which ones are -- how many are large trees and how many are smaller trees, and based on a normal bloom year and I suppose I should go back to that at this point because there's been some question as to why -- so first I'll answer what happens with filberts. They bloom extremely early in the springtime, their catkins are out even in early January and February. This year we had an extremely cold, wet, prolonged spring and so the pollen did not transfer from flower to flower and this was universal on the west coast which is kind of unusual. Usually if Oregon has a bad year, we have a good year, or vice versa, but this year everybody had a bad year. And probably, although I haven't checked the records, I'm quite certain it was at least the worst year in the last ten and it may have been the worst year in the last twenty. Crops are down 30 to 40 percent universally in all orchards. MS. D'ANGELO: I'm sorry, are we talking about spring of '93 or spring of '94? A I'm sorry, '94. This crop that we're harvesting right now is down about 30 to 40 percent universally in most orchards on the west coast. So now this orchard in subsequent years, with the number of trees that are of full production age, and we look at filberts, what am I going to expect in ten or twelve years, we have that type of generic information, and we would suggest to you that a filbert orchard in year ten to twelve is essentially into full production if everything goes according to plan and you don't have any bear damage or deer damage. At that point a commercial orchard would produce, optimistically, 2500 pounds of nuts per acre. Now, with the number of trees that we have at this site, we have over 170 trees which are essentially in that age, in that maturity range, we should produce without any question on those trees at least 2500 pounds of nuts on the mature trees, and I can't see why that shouldn't happen next year barring some type of act of God, poor weather, whatever you would like to say and we don't normally see that back to back, based on historical records we have, so I'm assuming that this block of nuts could very easily produce 2500 pounds of nuts next year if everything goes. CHAIRPERSON: And if not next year, when? A Well, what I'm saying is it should happen any year, so if it doesn't happen next year there's got to be some reason for it. There are enough trees in there large enough that if they don't do it next year they'll certainly do it the year after, and every year that we talk about in the future there are more trees getting older and older in that block and therefore the production capability is increasing every year and as the production capability increases, even if you get into these on off cycles which has been alluded to and is the case in a filbert orchard but it is not -- it should not be 100 percent crop this year and then down to 20 percent the following year, it shouldn't be that wide of a swing. It should be 100 percent down to 60 or 70 percent and then

10 back up to 100 percent, unless you get into a combination of affects like a very bad wet spring conditions like we had this year and that throws everything out of sync. So with the number of trees that are there now, we should be looking at commercial yields, if not the next year, and at this point I'd -- based on the light crop they've in there this year, those trees are set up to come back with a big crop the following year. In the cropping year of 1995 there should be sufficient crop there, barring some type of disastrous winter or spring conditions, and if it doesn't happen this year then it should happen the following year and it should happen every year from now on with the number of trees that are there, barring some major disaster. MR. McLOUGHLIN: Q Can you say anything about whether this appears to be a well managed orchard or not? A The day we walked through there the orchard looked quite well run, certainly the grass was all mowed, the trees had their steel collars on to keep the raccoons out, there was the wailer there which is utilized to keep the bears out, obviously some amount of investment to keep livestock out. I think, as I pointed out to you, that fertility wise the trees could have had a shot of a few other elements, this is not unusual in most orchards that things can be always improved. The trees generally looked good, there was good growth on them, the biggest disappointment, I guess, was the lack of crop. Now -- and the crop that was there, some of it was on the ground which was a problem which you already discussed. Q One other question then, did you read the application for developing farm status and can you say whether you thought it was practical and workable? A I read it a while ago, I haven't read it since. At that point I thought it looked quite acceptable to me for an application for this farm classification. Counsel are in agreement that (1) the Board is in a position to review the decision of the Assessor and stands in the place of the Assessor in making its decision and, (2), this Court's jurisdiction on an appeal from the Board's decision is to determine if the Board erred in law in making its decision. Counsel for the Respondent argued that it is only when land is in its initial stages of development that section 7 should be considered as a vehicle to granting farm status. He insisted that the Appellant's land is not a developing farm, that it is land that has already been developed and is not meeting the requirements of the Act and Regulations. He submitted that it was reasonable for the Board to infer from the evidence of the Assessor that the Appellant's land did not meet the conditions set out in section 7. He contended that the Board can give cognizance to the history of the farm and prefer that evidence to the evidence of Mr. Warner on the basis that the history of the farm is a better guide to whether the land should be classified as a farm than the opinion by Mr. Warner of what he thinks might happen in the future. With respect, I do not think this argument answers the issue of whether the Board erred in law. In my opinion, the Board had evidence before it which, under section 7(2), required it to direct the Assessor to classify the Appellant's land as a farm. The Board had evidence that the Appellant applied to the Assessor under section 7 to have the land classified as a farm and that the Appellant submitted a plan establishing that the Appellant is developing a farm that will meet the standards specified in section 3(1), as required by section 7(2)(a). This condition was satisfied by the uncontradicted evidence of Mr. Warner who testified that he could not see why the Appellant would not meet the production criteria in 1995 and, if not in that year, then certainly the year after.

11 There is no issue that the Assessor received the Appellant's application in time and therefore the condition in section 7(2)(b) has been met. As to the condition in section 7(2)(c), in addition to Mr. Warner's evidence, the Board had evidence before it that the Assessor was satisfied that the land is being developed as a farm because he was prepared to classify the land as a farm for the 1994 assessment year, subject to the Appellant reaching the necessary requirements in The Assessor changed his mind only after the Appellant rejected his condition. I think that the Appellant is correct in arguing that there is no jurisdiction in the Assessor to impose such a condition. Further, in my view, the Board, could not exercise the discretion under section 7(2)(c) to deny the Appellant farm classification on the ground that "the Appellant has had since 1974 to meet the required statutory threshold and has been unable to do so". There is no prohibition in section 7 against the Appellant making a fresh application for farm classification after the classification has been removed by the Assessor. Therefore, if the Appellant's application satisfied the conditions in section 7(2), which I think it clearly did, it was incumbent upon the Assessor, and in turn the Board, to classify the Appellant's land as a farm. I agree with the Appellant that the Board, in failing to direct the Assessor to classify the Appellant's land as a farm did so contradicting the clear facts before it and therefore committed an error of law. Accordingly, I would answer the first question, "Was the Assessment Appeal Board wrong in failing to direct the Assessor to classify the land as a farm?", in the affirmative. In light of my conclusion, I do not consider it necessary to deal with the balance of the questions. The Appellant is entitled to her costs.