How to Get around Zoning

AuthorHoward Epstein
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?
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.
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.

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