Land Use Controls And “Grandfathering”: Public And Private Interest Clashes

Land Use Controls And “Grandfathering”: Public And Private Interest Clashes

March 27, 2012

“A person’s home is his (or her) castle” – implying that the King (or Queen) in that castle has supreme right to use the castle as he or she sees fit. So why even have zoning bylaws? Because for each saying, there seems to be another that creates an opposing force. In the case of zoning, “the good of the many outweigh the good of the few or the one”.

The “greater public good” won the argument in terms of harmonious neighbouring land uses, restrictions on environmental impacts and the community value of development consistent with approved plans. Land use planning law in Ontario is a continuing and evolving effort at reconciling these two opposing points of view.

Municipalities were given the right to control land use through zoning by-laws despite objections that what was being granted was a governmental right to curtail property rights (and impact the value of land in the process) without any financial compensation to impacted individuals. This is a serious hole in the wall of the proverbial castle.

Zoning by-laws allow certain property uses to occur in specified locations of a town or city and prohibit other uses in those locations. There are a variety of styles of zoning by-laws amongst the various municipalities in Ontario, but it is virtually guaranteed that a zoning by-law exists wherever a municipality exists. Some of them are written in language that is extremely precise and narrowly applied while others are written in language that is broad and capable of more than one reasonable interpretation.

However, all the Kings and Queens in their castles were not totally vanquished in the name of the “greater good”. They retain some limited protection. In a zoning context, this protection is often referred to as “grandfathering” rights or as “legal non-conforming use” rights. It currently takes the form of Subsection 34(9)(a) of the Planning Act.

To paraphrase the legislation, Subsection 34(9)(a) provides that a municipality’s zoning by-law cannot prohibit any particular use of property (lands, buildings or structures) if that use lawfully existed on the date that the zoning by-law was passed, provided that the use has continued since then.

Over the years, the courts have looked at many circumstances where municipalities and landowners disagreed on whether or not this provision allowed a certain use to continue on a certain piece of land. Every element of the wording of that section has to be examined in each case:

  • Does the zoning by-law actually prohibit the use that is being questioned, or is the use allowed?
  • Is the section that prohibits the use otherwise valid?
  • Did the use exist on the property in question on the date that the zoning by-law was passed, and if so, did it lawfully exist on that date or did some other law prohibit the use?
  • Finally, there are many arguments as to whether or not a use has “continued” since the zoning by-law was passed.
    • If the use changes slightly or intensifies, is that a discontinuance of the original use?
    • If the use required a provincial licence, and the licence has lapsed, is the resulting illegal use a “discontinuance” of the former legal but “non-conforming” use?
    • What if there is a fire? Can the use be re-commenced once the damage to the building has been repaired?
    • What if there is no fire, but the building has become run-down through age – can it be re-built?
    • What if the economy is such that the business closes down, but the owner fully intends for the closure to be temporary?

Each circumstance has been evaluated by the relevant judge based on its particular fact scenario. As a result, some of the decisions seem difficult to reconcile with others.

The Supreme Court of Canada examined the grandfathering concepts in 2001. The case, called Saint-Romuald (Ville) c. Olivier, had arisen in Quebec, where the language in the relevant statute is very similar to Subsection 34(9)(a) of Ontario’s Planning Act. In that particular fact circumstance, the legal non-conforming use rights protected a restaurant/bar that operated with a country and western theme. The bar owner altered the operation to that of a strip club. The Municipality argued that a strip club and a country and western restaurant/bar are two very different uses, and that when the strip club opened for business, that represented a “discontinuance” of the restaurant/bar and a loss of legal non-conforming rights. The bar owner argued that there is no meaningful difference between a country and western bar and a strip club, so the use had not changed. A seven judge panel of the Supreme Court of Canada reviewed the case. By a narrow 4-3 split, the Court ruled that the strip club enjoyed the same legal protection that the country and western restaurant/bar had enjoyed, in spite of evidence that the clientele were different, the club was much more popular and the police were much more interested in visiting frequently based on the new clientele.

In coming to its decision, the court set out a seven-part test for municipalities, Kings, and Queens to refer to for guidance in future cases. It was hoped that the test would provide some certainty and would help lawyers and scholars to understand the seemingly contradictory decisions that had been handed down over the prior few decades. This important case has been around for some ten years now, and while most agree that the seven-part test has been of some assistance, the end-result decisions in some of the recent cases remain difficult to fit together in a way that paints a clear picture of the law. The bottom line continues to depend on the type of evidence presented and the manner in which it is presented. This suggests that ‘grandfathering’ issues remain primarily fact driven, and that the seven part test is not the best reference point possible, but it is the only one we have.

When was the last time that the zoning by-law in your municipality was comprehensively changed? In Thunder Bay, a new zoning by-law took effect in 2011. The use rights impacting your property (or the property next door) may have been significantly changed. The change may have affected your property’s value (either for the better or for the worse), which could have an impact on your plans for the land.