The Joys of Being Grandfathered: An overview of legal non-conforming rights

  • 30 mars 2019
  • Philip Osterhout, lawyer at Soloway Wright LLP

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.

The next important thing to keep in mind is that the Planning Act exemption of a legal non-conforming use applies to the “land, building, or structure." In the example provided, the use is in a house and therefore the protection attaches to the building. This has two primary implications: First, legal non-conforming rights are tied to the property and not to the owner. This means that when you sell your property to retire, the purchaser can carry on operating your restaurant or, if they’d like, open a new restaurant to replace yours.

Second, the Supreme Court tells us in Central Jewish Institute v Toronto (City) [1948] SCR 101 that because the exemption attaches to a building, the legal non-conforming use of only a part of a building allows the entire building to be used for that purpose. As a result, if the restaurant does well and you want to expand to the second floor, you’re able to do so even though that area wasn’t being used as a restaurant on the day the prohibiting by-law was passed.

That being said, the use cannot be expanded beyond the confines of the existing building as-of-right. In other words, if you wanted to build an addition to your house (whether in connection with the restaurant or not), or expand the restaurant onto a patio in the rear yard, you would need to seek a “permission”. Subsection 45(2)(a)(i) of the Planning Act empowers the Committee of Adjustment for a municipality to permit the enlargement or expansion of a “building or structure” that houses a legal non-conforming use – a process that would otherwise require a minor variance or zoning by-law amendment, both of which are subject to a higher test and may be appealed to the Local Planning Appeal Tribunal.  

Incidentally, for open-air uses that are not inherently tied to a building or structure (such as a park, or a farm) legal non-conforming rights attach to the “land” itself. Whether that means the particular lands used on the date of the prohibiting by-law or the entire lot containing the use appears to be a question of circumstance, interpretation, and intent. For example, the courts have repeatedly held that the legal non-conforming rights of a quarry located on part of a lot extend throughout the entire lot and even to adjacent parcels held under the same ownership for the purpose of future expansion of the quarry (see Cedarhurst Quarries & Crushing Ltd v Somerville (Township) [1995] OJ No 2396 (Ont. Div. Ct; leave to appeal to ONCA refused); and Rock Solid Holdings Inc v Lakehead Rural Planning et al. 2017 ONSC 6564). In another case, the Divisional Court relied on Central Jewish Institute to confirm that the purchaser of a 15-acre lot was entitled to expand a three-to-four-acre wrecking yard throughout the entire property, because the previous owner had a bona fide intent to eventually expand the established operation (R v Barry Humphrey Enterprises Ltd 15 OR (2d) 548 (1977: Ont. Div. Ct)).

This raises the question of how much a legally non-conforming use is permitted to change without lapsing. The following guiding parameters were set out by the Supreme Court in Saint- Romuald (Ville) c Olivier 2001 SCC 57:

1. The use is characterized by the purpose of the activities carried out prior to the prohibiting by-law;

  • E.g. the operation of a restaurant; not necessarily your restaurant, but any restaurant. 

2. Intensification of the pre-existing activity is generally permitted, however protection can be lost if the increased activity renders it a use of a different kind in terms of community impact;

  • E.g. no planning approvals would be required to increase the number of tables in your restaurant (assuming you met the parking requirements, etc.), or to extend your hours of operation. By contrast, the fact that you previously sold alcohol and played music would not amount to a legally non-conforming right to operate a nightclub. 

3. Expansion of activities beyond the pre-existing use are not protected;

  • E.g. a small farm and butcher shop are likely not permitted, even though they may be tangentially related to the original use.

4. Where the use is modified within the original purpose – i.e. where closely related or accessory uses are added – the court will weigh the owner’s interest against the community interest;

5. Neighbourhood effects should be proven through evidence;

6. Acquired rights should be flexible enough to allow for reasonable change of use, so long as the change is connected to the original pre-existing use;

  • (Remember when you sold your prized restaurant? Not only is the purchaser entitled to rebrand, but they can almost certainly tear down your old house and rebuild, as long as the new restaurant is on the same footprint)

7. The characterization of the acquired right should be grounded as much as possible to objective fact, and should be free from any value judgment.

  • (Meaning as long as they rebuild a restaurant, it doesn’t necessarily need to be “classy”).

Given the sometimes-nebulous interpretation of zoning uses, landowners who want to change a legal non-conforming use to a related use may walk a thin line somewhere between points 3 and 4 above, at the risk of prosecution. In Ontario, this problem is avoided by subsection 45(2)(a)(ii) of the Planning Act (the related provision to subsection 45(2)(a)(i) discussed above), which empowers a Committee of Adjustment to issue a permission for a use that, in its opinion, is similar to a legally non-conforming use, without the need for the owner to go through the much more cumbersome process of applying for a zoning by-law amendment. 

Keep in mind that zoning issues are highly site-specific, and when in doubt on the legal non-conforming status of a property, have the municipality confirm the use, get a permission, or consult with a lawyer.

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