March 13, 2006

By Brian Babcock

Zoning bylaws restrict the use of land to specified uses. Bylaws are updated or revised over time. These revisions usually reflect changes in the neighbourhood. Industrial zones become gentrified. Rural areas become bedroom communities.

In Ontario, a new bylaw or revisions to an existing bylaw must include protection for what are called “non-conforming uses”. This term refers to uses, which are legal (or legally non-conforming) at the time the new rules become effective, but which would not be permitted under the new rules.

Friction frequently arises over the extent of that protection.

An Ontario Superior Court judge recently considered an interesting example. In Watts v Benvenuti , the respondent purchased a piece of land, a portion of which was zoned residential. The remaining acreage had previously been zoned agricultural, but in revisions to the bylaw, had been rezoned as residential. The respondent established a horse boarding business on the lands formerly zoned agricultural lands. The applicant lived nearby, on land zoned for residential uses.

The formerly rural area was now a mixture of residential and agricultural use, including a sheep farm and ginseng farming.

The evidence indicated that the previous owner of the respondent’s land had used it both before and after the bylaw amendment for agricultural purposes. There was some uncertainty as to the exact activities carried out, either at the date of the bylaw or at the date of purchase. The applicant suggested that the use was strictly to grow crops. Other evidence suggested that chickens and rabbits (“livestock”) were kept, but it was unclear as to the timing, and whether or not this continued up to that date of the bylaw, or beyond.

Three issues arose.

First, a use is only legally non-conforming if it exists, and is or was legal, on the date the new rules come into force. Therefore, if livestock were kept before the new bylaw, but at the effective date, only cash crops were grown, the latter activity alone defined the legal non-conforming use( if they are really different uses at all).

Second, a legally non-conforming use must be continuous. So if there were livestock on the farm at the effective date, but only crops were grown in later years, the Court must determine whether or not the livestock use was temporarily interrupted, or discontinued. If it were discontinued, then again, cash crop farming would define the extent of the legal non-conforming use.

Thirdly, however, and most importantly, the Court had to decide whether raising livestock was a different use from growing cash crops, as the evidence on the continuity of the livestock use was not convincing. As a subsidiary question, the Court shed light on whether all livestock are a single category – that is, are sheep and horses the same for categorization of the use?

The court found easily that there was evidence of cash crop farming as at the date of the new bylaw, and, with only slightly more trouble, accepted that this use continued until the sale was completed.

On the third issue, the judge applied a test based on six factors identified in an earlier Supreme Court of Canada case (in which nude dancers replaced country music in a bar). The six tests are:

1. The purpose of the pre-existing use and the pre-existing activities.
2. Is the new use an intensification of the old use, in degree or kind, or does it have a different community impact?
3. Is the new activity closely related to the old use?
4. Are the new activities within the scope of the old use?
5. The effect on the neighbourhood.
6. The proper balance between flexibility and constraint.

As can be easily seen, there is a lot of overlap between the tests, which in some cases are mainly different angles of examining the same issues. The fifth and sixth tests really capture the objective that court must achieve. In summary, it favours a functional or practical approach over a technical interpretation.

Zoning is all about restricting owner’s rights. This is done so that neighbours are not unduly inconvenienced, in addition to other community planning objectives.

In the Watts case, the judge decided that as horse farming would have been permitted under the old bylaw, and was similar to the prior livestock activity, that a purchaser might reasonably assume that this activity was permissible. Given the sheep farm nearby, the character of the neighbourhood was still mixed agricultural and residential. There was no evidence that the horse farming seriously disturbed the neighbours- the impact of the manure pile, the sight of which a major complaint of the applicants was considered “minimal”. A broad category of “agricultural” was considered appropriate under the sixth test.

The horse farm could remain.

As the judge carefully pointed out, each case turns on its own facts, and each neighbourhood is different. However, this decision is a useful reminder that:

1. New or revised zoning bylaws may limit future use of property
2. Existing legal uses may be continued
3. Ceasing that use may result in future rights being lost
4. Proof of prior uses is important, so documentation is critical
5. When a non-conforming use is altered, the Courts must decide whether the altered use is in the same category as the prior use
6. The bylaw definitions of uses are only one source of guidance
7. The reasonable expectations of the owner are another key factor
8. The court will balance the rights of the owner and neighbours
9. In this balancing act, actual impact, rather than technical definitions, will be most important
10. This balancing act will use similar factors whether the dispute arises from rural urbanization, or commercial zoning.

Whether purchasing property, considering a new use, or confronted by proposed zoning amendments in your neighbourhood, advice as to zoning is crucial. At Weilers, our real estate and municipal lawyers remain up to date on the latest trends in interpretation, to assist you in making smart choices.