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Zoning By-laws And Non-conforming Land Use

Zoning By-laws And Non-conforming Land Use

March 28, 2006

This article describes how the case Watts v Benvenuti fits into the overall approach that courts take in wrestling with zoning conflicts.

Making sense of the mess of the caselaw in this area leads to the conclusion that the results often reflect concerns about social and political issues inherent in the viewpoint taken by the Court. If we wish to avoid the conundrum that results are arbitrary based on individual bias, we need to appreciate the conflicting values at play, and plan and present applications , from the first submissions through the appeal or judicial review process, with an eye to the perceived community values at play.

Some municipal by-laws are for the protection and safety of the populace. The courts generally interpret such by-laws broadly and generously, to provide the greater protection.

Zoning by-laws restrict the use landowners can otherwise put their land to. When interpreting such by-laws, courts tend to go in at least two divergent paths. One such path assumes that the motivation for the restrictive by-law is good planning emanating from a professional municipal planning department, which has a broad perspective on the long range planning goals of the municipality. This presumably includes the public health and safety concerns that suggest that, for example, dangerous industrial uses ought not to be located beside a day care.

The other path stems from a presumption that government should not needlessly or capriciously deprive citizens of rights they would otherwise enjoy but for the by-law in question. Restrictive by-laws, which appear to the court to be draconian, are interpreted as narrowly as the text will allow. When doing so the court assumes the mantel of protecting the individual landowner from the arbitrary power of the state.

Judges generally demure from locking horns with a municipality by asserting that it has overstepped its reasonable role in the planning process. Often, it is not the plain wording of the by-law that is egregious but rather its application to a specific set of facts may create a problem.

If a planning department wants a project to go forward or wants a use to continue, it tends to take a broader interpretation. To oversimplify, in Watts v Benvenuti , the legal use prior to rezoning was agricultural and keeping horses is agricultural in nature, therefore the keeping of horses is legally nonconforming provided the agricultural use has been ongoing to the present. Should the planning department be opposed to the use, they could have split hairs to infinity in defining the use prior to the passage of the rezoning by-law.

So silviculture could be distinguished from horticulture, the keeping of stallions is different than the keeping of mares, and land lying fallow is viewed as a termination of the agricultural use rather than a necessary part of the agricultural cycle.

How one characterizes the nonconforming use is too often determined by where one wants to get to. We would like to believe that a rational argument based in sound planning principles against a background of agreed facts, leads us to a natural and certain conclusion. Too often, however, the content and nature of that argument is determined by an effort to reach an intuitively pre -determined conclusion. If the law is to make sense, and develop in a coherent fashion, rather than being an arbitrary set of decisions based on the bias of adjudicators, then the “functional” or “realistic” approach found in Watts v Benvenuti is a useful expression of the sense of fairness and community values which should underlie good planning.