How to Get around Zoning

• Author: Howard Epstein
• Pages: 358-396

358

CHA PTER 7

HOW TO GET AROUND

ZONING

A. PRELIMINARY

In this chapter we have a closer look at some of the f‌lexibility mech-

anisms th at have evolved regarding local land use. The perspective for

purposes of this chapter is primar ily that of the landowner.

The main ones are non-conforming use s (NCUs), accessory uses,

minor variances, pushing the limits of the land-use by-law (LUB),

bonusing and its variants such as development agreements (DAs),

home-based businesses, changing the rules, and ignoring the rules. Al l

of these are extensively relied on by landowners, especially profession-

al developers, and have occasioned a great deal of litigation. All have

legal peculiarities. Because of the array of ways to treat the system of

land-use rules as f‌lexible, one of the main virtues of st atutory land-use

regulation in comparison to common law litigation, that is, reasonable

certainty, is undermined.

The 2001 decision of the Supreme Court of Canada in Saint-Romuald

(City) v Olivier1 set s out guidance for assessing whether an NCU right has

been pushed too far. While it is helpful to have such guida nce, would a

system in which NCUs were specif‌ied by agreement w ith the municip-

ality (as in the United Kingdom) be a useful addition? Should NCUs be

phased out over time (as is common in the United States) since by def-

inition they represent a land us e no longer considered desi rable? For the

1 2001 SCC 57 [Saint-Romuald].

How to Get around Zoning 359

moment, NCU rights are usually considered so valuable to a landowner

that, as one judge complained, the case s are “seemingly endless.”

Accessory use is a device premised upon the notion that zoning

by-laws are not going to be able to contemplate all possible reasonable

land uses on a part icular site. Allowing use s that are subordinate to

the main use and normally and naturally incidental introduces some

f‌lexibility. Is this a benef‌icial idea? Is it too vague, or open to abuse?

Likewise, mi nor variance applications allow for some breakage of

the rules and are usually treated as fairly routine administrative mat-

ters. Should they be? Who should be notif‌ied of variance requests? Who

should decide them? Are better guidelines needed? Should there be

app ea ls?

Bonusing, and development agreements as a form of bonusing, are

a common device in major development proposals. Focused on specif‌ic

development proposals, the main effect is to per mit a development that

would not otherwise be allowed by the land-use by-laws, and to prevent

future municipal councils from ca ncelling the proposed development.

How is the public interest best ser ved when engaging in this type of deal?

What types of public benef‌its are appropriate? What of cash-in-lieu?

B. NON-CONFOR M ING USES

Although land-use planning (LUP) as a public process could in all

instances overr ide private preferences, this is not the policy choice

made in most circumstances. Respect for private property, and espe-

cially for actual investment made and manifested in developed land

uses, particularly in buildings, is an important value recognized in the

main governing statutes, and at the common law.2 This is primarily

manifested in provi sion for allowing non-conforming uses, known

in Quebec as “acquired rights,” to continue where they would not be

permitted if coming forward for the f‌irst time. There are several vari-

ants: a non-conforming use of land, a non-conformi ng structure, and

a non-conforming use in a str ucture. It is often the last that is at is sue

in NCU cases.

A typical provision is, “A non-conforming structure, a non-con-

forming use of land or non-conforming u se in a structure, may continue

2 Prince Edwa rd Island has no statutor y protections for NCU, but off‌icial plans

(OPs) may provide for them, and the provi ncial subdivision reg ulations, Sub-

division and De velopment Regulations, PEI Reg EC693/ 00, specify that law ful

NCUs may continue.

LAND-USE PLANNING360

if it exists and is lawfully permitted at the date of the f‌irst publication

of the notice of intention to adopt or amend a land-use by-law.”3 “Ex ists”

includes “lawfully under constr uction and completed within a reason-

able time” or “the permit was in force, construction commenced w ithin

twelve months, and was completed within a reasonable time.”4 NCU is

not a personal right; it attaches to t he land — a change in ownership

does not defeat the NCU right.

The statutory policies around NCU contain two aspects: respect

for a pre-existing legal use and a desire that the use be brought into

conformity with the applicable laws a s to use. Thus, in the case of “dis-

continuance” of the NCU for some specif‌ied time (usually in the range

of six to twelve months) or if the structure is “destroyed or dam aged” to

some specif‌ied extent (usually 75 percent of the value of the structure

above its foundation), then the NCU rights are extinguished. Ex tin-

guished means t hat only uses permitted in the zone will apply. Toronto

Roman Catholic Separate Schools v Toronto (City)5 has a good statement

of the importance of an NCU statute.

Protecting NCUs is sensible, but not the only possible policy

choice that might have been made. An alternative, easily seen as un-

palatable, would be to force immediate abandonment or change of use

on an owner, consequent upon a zoning change. Clearly such a policy

would be onerous for many individual landowners, and could be d is-

ruptive for many others in the community (tenants, for example, if a

multi-unit apartment building were requi red to convert to a duplex or

single-family building ). There might be logic to such a policy if the

previous use were in the nature of a nuis ance, but a requirement for

immediate cessation of formerly legal activities, even in these circum-

stances, has not generally been allowed for in legislation.

A second alternative would be to require ces sation after a set period

of time, or a phasing out of the non-conforming use. This i s an alterna-

tive that is or has been allowed for in some American jurisdictions

(e.g., Cali for nia, New York, Colorado, Pennsylvania, Ohio, Indian a, and

Missouri) and is referred to a s an “amortization.” Periods allowed for

the removal of the NCU vary quite greatly, from as short as thirty days

for signage to three or f‌ive years for businesse s such as junkyards or

billboards, to as long as t wenty or forty years for buildings that are

completely non-conforming. Challenges to amortization laws have not

generally been upheld, though specif‌ics have been te sted against a stan-

3 Halifax Regional Munic ipality Charter, SNS 2008, c 39, s 253(1) [HRM Char ter].

4 Ibid, s 253(2).

5 [1924] SCR 368 at 373–74.