Suppose you own a house and want to open a restaurant on the ground floor. The applicable zoning by-law happens to permit that use on your property so you pull a building permit for the renovations, get a liquor license and start cookin’ with [TSSA-approved] gas. A week later, the City, in its wisdom, amends the zoning by-law to prohibit restaurant uses at your property. What do you do now?
The obvious first step is to keep going. Subsection 34(9) of the Planning Act provides that provisions in a zoning by-law are ineffective at prohibiting any use of land, a building or a structure that was lawfully commenced on the date the by-law was passed. You got your building permit before the by-law was amended, so you get to keep the restaurant. The use has become legally non-conforming.
The catch is that once established, the exemption only applies so long as the use continues. Typically, temporary interruptions in a use will not undermine its legal non-conformity provided that there is an intention to resume the use. If, for instance, a few years down the road you close the restaurant for renovations, the protection will not have been lost by the time it reopens. On the other hand, if the restaurant never reopens and you start living on the ground floor again, the legal non-conformity will lapse and all future uses of the property will have to comply with the in-force zoning by-law.
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