Moncton (City) v. Como, (1990) 103 N.B.R.(2d) 286 (TD)

• Judge: Paul S. Creaghan, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: January 17, 1990
• Jurisdiction: New Brunswick
• Citations: (1990), 103 N.B.R.(2d) 286 (TD)

Moncton v. Como (1990), 103 N.B.R.(2d) 286 (TD);

    103 R.N.-B.(2e) 286; 259 A.P.R. 286

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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City of Moncton (applicant) v. Bruce Como (respondent)

(M/C/195/89)

Indexed As: Moncton (City) v. Como

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Paul S. Creaghan, J.

January 17, 1990.

Summary:

Como took possession of property outside the Moncton city limits in 1973. The area became part of the city later in 1973 through amalgamation. Como obtained a deed in 1974. Como operated an excavation, snow removal and equipment repair business on the property from 1974 to the present. Heavy equipment was stored on the property. A 1980 city zoning bylaw did not permit such use. The city applied under the Community Planning Act for an order that Como be restrained from violating the bylaw. Como claimed entitlement to continue his use, which he claimed was a nonconforming use.

The New Brunswick Court of Queen's Bench, Trial Division, held that Como's use was permitted between 1974 and 1980; that the city failed to prove that a Provincial Planning Board bylaw restricted Como's use of the land. Therefore, Como's use of the land was permitted before the city bylaw and, since his use was continuous and unchanged, he had the right to continue to use the land in the same manner in contravention of the bylaw. The court stated that additional land purchased by Como after 1980 must be used in compliance with the bylaw.

Land Regulation - Topic 2601

Land use control - Zoning bylaws - Enactment and interpretation - Interpretation of zoning bylaws - Como purchased land outside the city limits of Moncton - The land was subject to regulation by the Town Planning Commission of the Metropolitan area of Greater Moncton and was subject to zoning bylaws passed by the Provincial Planning Board - The City of Moncton claimed Como's use of the land was contrary to a Board zoning bylaw - The city produced a poor photostatic copy of the bylaw - It was unsigned and not certified as a copy of the original - It was not registered in the Registry Office - The New Brunswick Court of Queen's Bench, Trial Division, upon perusing the bylaw, was unable to find any reference to restrictions on Como's use - The bylaw made reference to a plan or map, but none was attached - The court held that the city failed to prove Como's use contravened the bylaw.

Land Regulation - Topic 2801

Land use control - Exemptions - Nonconforming use - Use not conforming with zoning bylaw - Como operated an excavation, snow removal and equipment repair business on his property from 1974 to present - A City of Moncton zoning bylaw passed in 1980 prohibited such use - The city sought an order restraining Como's use of the land - The New Brunswick Court of Queen's Bench, Trial Division, held that Como established a right to continue to use the land as in the past pursuant to a nonconforming use - Como was permitted to use the land as he had before the bylaw and, since his use was continuous and unchanged, he had the right to continue to use the land in the same manner in contravention of the bylaw.

Cases Noticed:

Biddington v. Tri-Gill Paving and Construction Ltd. and Gillcash (1986), 71 N.B.R.(2d) 399; 182 A.P.R. 399 (Q.B.), dist. [para. 20].

Lordon v. Pitman (1980), 33 N.B.R.(2d) 23; 80 A.P.R. 23 (C.A.), dist. [para. 24].

Mowat v. Steeves (1981), 34 N.B.R.(2d) 338; 85 A.P.R. 338 (Q.B.); 35 N.B.R.(2d) 51; 88 A.P.R. 51 (C.A.), dist. [para. 40].

Statutes Noticed:

Community Planning Act, R.S.N.B. 1973, c. C-12, sect. 1 [para. 13].

Moncton City Zoning Bylaw No. 302, sect. 1(v) [para. 11]; sect. 36 [para. 10].

Authors and Works Noticed:

Rogers, Canadian Law of Planning and Zoning (1989), p. 210.12 [para. 19].

Counsel:

Michael B. Murphy, for the applicant;

Scott F. Fowler, for the respondent.

This application was heard on January 2 and 9, 1990, before Paul S. Creaghan, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following judgment on January 17, 1990.