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Municipal - Legal Non-Conforming. Cummins Estate v. Milton (Town)
In Cummins Estate v. Milton (Town) (Ont CA, 2023) the Court of Appeal considered a 'legal non-conforming' municipal issue [here under Planning Act 34(9)]: s.:[7] ... The appellants’ first argument is that the listed uses are legal non-conforming uses permitted by s. 34(9) of the Planning Act, R.S.O. 1990, c. P.13, which states that no zoning by-law restricting the use of land applies to any land that was lawfully being used in the restricted way on the day the by-law was passed. In short, the appellants argue that Mr. Cummins and his company were using the Property for these purposes as legal uses, which have continued to present time.
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(a) Is the Appellants’ Use of the LNCU Area a Legal Non-Conforming Use?
[11] The application judge noted that the appellants relied on subsection 34(9) of the Planning Act, R.S.O. 1990, c. P.13, as amended, which, at paragraph (a) therein, provides that no by-law passed under section 34 (which deals with zoning) applies to prevent the use of any land for any purpose prohibited by the by-law if such land was lawfully used for such purpose on the day of the passing of the by-law, so long as it continues to be used for that purpose.
[12] In his Report, Mr. McDonald noted:Mr. Patrick Cummins in his Affidavit dated February 28, 2020 asserts the uses are legal non-conforming on the basis that there was no zoning in place at all when they were commenced:“Before the enactment of the Planning Act in Ontario in 1983, there were no prohibitions to the Subject Property being used for commercial purposes. It took most municipalities a number of years to enact by-laws under their new-found authority. So, the Subject Property, being used as a contractor’s yard, salvage yard, commercial operation, or outside storage yard was perfectly legal in May, 1985 when it started.” This is not true and is not the basis of the opinion provided by the Applicant’s Land Use Planner Mr. Ramsay. As Mr. Ramsay correctly identifies in his report, a Town of Oakville zoning by-law has applied to the Subject Lands from 1965 to 1985 (By-law 1965-136) and after 1985, Town of Milton zoning by-laws applied. [...]
For instance, Mr. Patrick Cummins in his affidavit dated February 28, 2020 identifies different uses than in the Application and indicates that the following uses were initiated soon after the Subject Lands were purchased in 1984: ‘contractor’s yard’, ‘salvage yard’, ‘commercial operation’, and ‘outside storage yard’. This inconsistent use of terms makes it difficult to assess the information provided.
Mr. Ramsay however provides no opinion on whether a contractor’s yard, salvage yard and a commercial operation were permitted in 1984. [13] Mr. McDonald’s opinion is set out in the affidavit to which his lengthy report was attached. These conclusions provide important contextual details about the proper interpretation and application of the zoning by-law:a) The Subject Lands (5193 8th Line) have been continuously zoned (A) Agricultural since 1965.
c) None of the applicable zoning by-laws have permitted a contractor’s yard or a salvage yard as a main or principal use on the Subject Lands – this means that a contractor’s yard or a salvage yard would not have legal non-conforming status.
d) None of the applicable zoning by-laws have permitted the leasing of portions of the Subject Lands to outside third parties for the storage of goods, equipment or materials, or for business office use – this means that the leasing of portions of the Subject Lands to outside third parties for the storage of goods, equipment or materials or for business office use would not have legal non-conforming status.
e) Accessory uses to legally permitted main or principal uses have always been permitted – this is not an issue of legal non-conforming use. While the definitions in the various zoning by-laws have varied to a certain degree, they all require that an accessory use be normally/customarily incidental to, subordinate to and exclusively devoted to the legally permitted main or principal use of the property. For instance, storage of agricultural equipment used in the agricultural operation of the property would be permitted, but renting storage space to outside third parties would not be.
g) The amount of land on the Subject Lands used for the outdoor storage of equipment, vehicles and materials by outside third party contractors and as a base of their operations (1.1 hectares in 2013) would need to be permitted as a principal use rather than accessory use given its scale and independent nature (it is its own land use and does not support another land use on the property).
Regardless of the exact date when this land use started, its has not been permitted by any of the zoning by-laws that have applied on the Subject Lands since their purchase in 1984 by the Cummins family. [14] Reading the application judge’s reasons in context, it is plain that he accepted Mr. McDonald’s opinion that the use could not be a legal non-conforming use under s 34(9) of the Planning Act. The application judge found that the commercial activity that took place on the Property in 1984 was not legal under the by-law. He stated, at para. 21, that the application “must be dismissed for this reason: assuming that the evidence establishes on balance that what [the appellants] now want to use the Property for (see the declaratory relief that they are seeking in their Application) was in fact going on at the Property in or around 1984, as alleged, it matters not because that activity was not lawful under zoning by-law 1965-136, subsection 56(1)(i)” (emphasis by application judge).
[15] Essentially, the application judge accepted the Town’s position that “the proper characterization of the use of the LNCU area is a contractors’ yard,” and that such use was unlawful. He did not err in doing so. We dismiss this ground of appeal. . Henhoeffer v. Georgian Bay (Township of)
In Henhoeffer v. Georgian Bay (Township of) (Div Court, 2023) the Divisional Court ruled that the 'legal non-conforming' principle applied to zoning, not as here as landfill situation:Does the principle of legal non-conforming use have application to this case?
[42] This reflects on the proposition suggested by the Applicant that the site alterations of concern were put in place not by the Applicant, Roberta Henhoeffer and her husband, but by the previous owner at a time which predated the enactment of the Site Alteration By-law. The Township did not accept this position. Seemingly, it was founded on a site visit undertaken by John Jackson as part of his work with the current owners. The historical photographs, aerial imagery, photographs submitted from those who made the original complaints, when reviewed by Township staff, led them to conclude that the previous owners had made only minor alterations and the alterations of concern were as a result of the actions of the Applicant and her husband. This was a reasonable conclusion and negates any reliance on activities by past owners.
[43] Even if this were not so, the concept of a legal non-conforming use has no application to this matter. The principle applies to zoning enacted pursuant to the Planning Act. It has no reference to site alteration as referred to in the Municipal Act. . Chahal v. Caledon (Town)
In Chahal v. Caledon (Town) (Ont CA, 2023) the Court of Appeal held on appeal that a prior legal non-conforming status was lost when use of the land changed materially:[1] The Chahals appeal from the decision of the application judge who dismissed their application for a declaration that their current use of the lands that they own in the Town of Caledon are a legal non-conforming use, pursuant to s. 34(9) of the Planning Act, R.S.O. 1990, c. P.13, and thus the appellants are not required to obey Orders to Comply issued by the respondent, the Corporation of the Town of Caledon. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide those reasons.
[2] As detailed in the reasons of the application judge, the appellants’ lands have a history of being used as a commercial trucking and transportation enterprise involving the parking of transport tractors and trailers and related outside storage. The evidence was that this was the use to which the lands were put by the two previous owners of the lands. The application judge found that this prior use was a legal non-conforming use.
[3] However, the application judge found that the use to which the appellants are putting the lands had changed to the point where its use was completely different than the previous legal non-conforming use. She found that the appellants were using the lands for other purposes, including to store derelict vehicles, a fuelling station, a repair facility, and as a general dumping ground for vehicles, parts, and construction waste. . Di Blasi v. York (Regional Municipality) [for case cites see the link]
In Di Blasi v. York (Regional Municipality) (Div Court, 2022) the Divisional Court briefly summarizes the criteria for legal non-conforming uses of property:Were there Legal Non-conforming Uses of the Property as of the Valuation Date?
[16] Where a By-Law prohibits a use on a property, the burden to show a legal non-conforming use lies on the claimant, in this instance, the appellant. To establish a legal non-conforming use, the appellant must establish that:(a) the claimed use was established and lawful on the day of passing of a bylaw which prohibits the use; and
(b) the use has been continuous since the day the interfering bylaw was passed.[4] . York (Regional Municipality) v. 1085638 Ontario Limited
In York (Regional Municipality) v. 1085638 Ontario Limited (Ont CA, 2022) the Court of Appeal considered an issue of 'legal non-conforming use' under the Planning Act in the context of some POA offences:(1) Legal non-conforming use
[15] The argument on this issue, and which led to leave to appeal being granted, was whether s. 34(9) of the Planning Act requires that the non-conforming use be in active operation on the very day that the zoning by-law comes into force. That question is of importance in this case because, as found by the Justice of the Peace, the appellants could not state with any certainty that that was the case. Indeed, there was some evidence that could suggest the garden centre had not become operational until much later in time.
[16] The appellants submit that to hold that the business must be in operation on the very day when the zoning by-law comes into force is inconsistent with the wording of the Planning Act and is also inconsistent with this court’s decision in Feather v. Bradford (Town), 2010 ONCA 440, 320 D.L.R. (4th) 228.
[17] We do not agree. In our view, the wording of s. 34(9) is clear. It reads:No by-law passed under this section applies,
(a) to prevent the use of any land, building or structure for any purpose prohibited by the by-law if such land, building or structure was lawfully used for such purpose on the day of the passing of the by-law, so long as it continues to be used for that purpose; or
(b) to prevent the erection or use for a purpose prohibited by the by-law of any building or structure for which a permit has been issued under subsection 8 (1) of the Building Code Act, 1992, prior to the day of the passing of the by-law, so long as the building or structure when erected is used and continues to be used for the purpose for which it was erected and provided the permit has not been revoked under subsection 8 (10) of that Act. [Emphasis added.] [18] The emphasized words from s. 34(9)(a) do not allow for any other interpretation. Had the Legislature intended that the use could exist at some point prior to the by-law being passed, it could have used the language that appears in s. 34(9)(b), that is “prior to the day of the passing of the by-law”, but it did not. The express language of the section must be given effect.
[19] We also do not see any inconsistency in that conclusion and the decision in Feather for two reasons. The first is that the decision in Feather did not deal with the issue that is before us. Rather, the decision addresses an attempt by the property owner to reconstruct a cottage. It did not involve an issue over the use of an existing cottage. The second is that there was a factual finding in Feather that the owner of the cottage had used it continually up to and including the date on which the applicable zoning by-law was passed. That is an important factual distinction between this case and Feather.
[20] The appellants advance a further basis for submitting that the finding of the Justice of the Peace was in error. They contend that the finding that there was insufficient evidence that the business was operating on the day the by-law was passed was premised on the fact that the witnesses who testified to the issue could not recall whether the garden centre was open on the specific day the by-law was passed. They say there was unchallenged evidence that the appellants began operations prior to the date on which the by-law was passed and continued thereafter to the date of the hearing. The finding of insufficient evidence that the business “was operating” on the date the by-law was passed is therefore an error in law.
[21] We cannot accept this argument. The appellants’ evidence that the garden centre began operations prior to the date on which the by-law was passed was not unchallenged. As we have said, there was also evidence on which the Regional Municipality of York (the “Region”) relied that could suggest the garden centre was not operational until well after the by-law was passed. Counsel for the Region cross-examined the appellants’ witnesses concerning whether the business was in operation on the day the by-law was passed. The appellants’ argument in this regard is not a question of law, rather it is a question that attracts review on a standard of palpable and overriding error. This court’s jurisdiction on appeal under s. 131 of the Provincial Offences Act, R.S.O. 1990 c. P.33 is limited to a question of law alone. The appellants’ argument in this regard was addressed and dismissed by the appeal judge. . Lee v. 1435375 Ontario Ltd.
In Lee v. 1435375 Ontario Ltd. (Ont CA, 2013) the Court of Appeal characterizes the land planning doctrine of 'legal non-conforming':(3) Legal Non-Conforming Use
[44] The doctrine of legal non-conforming use has been described as a “shield against interference with acquired rights”: Ottawa (City) v. Capital Parking Inc. (2002), 2002 CanLII 41644 (ON CA), 59 O.R. (3d) 327 (C.A.), at para. 36.
[45] It is codified in s. 34(9)(a) of the Planning Act¸ R.S.O. 1990, c. P.13:(9) No by-law passed under this section applies,
(a) to prevent the use of any land, building or structure for any purpose prohibited by the by-law if such land, building or structure was lawfully used for such purpose on the day of the passing of the by-law, so long as it continues to be used for that purpose ... [46] In order to prove a legal non-conforming use, a party must establish that:(a) the use of the land, building or structure was lawful at the time of the enactment of the relevant zoning restriction; and
(b) the previously lawful use has continued thereafter. See Feather v. Bradford West Gwillimbury, 2010 ONCA 440, 268 O.A.C. 239, at para. 27; Saint-Romuald (Ville) v. Olivier, 2001 SCC 57, [2001] 2 S.C.R. 898; Rotstein v. Oro-Medonte (Township), 34 M.P.L.R. (3d) 266 (Ont. S.C.).
[47] The principle applies even to the extent of permitting the intensification of a use, provided that the intensified use does not result in a difference in the kind of use. The point was made in Saint-Romuald, at paras. 25-26:In general, merely continuing the precise pre-existing activity, even at an intensified level, is clearly protected, but the intensification may be of such a degree as to create a difference in kind. A family farm which has a few pigs on the fringe of a town may continue as a legal non-conforming use, but the result may be otherwise if it is sought to expand its pork operation into "factory in the country" type intensive pig farming. While in one sense the "use" has continued, in another sense its character has been so altered as to become, in terms of its impact on the community, an altogether different use.
In the more usual type of situation, a non-conforming commercial use in a residential neighbourhood that enjoys increasing business should not ordinarily be penalized for its success by losing its "acquired right" to operate, even if a by-product of that success is some increased traffic and noise.
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