Legally Conforming

An owner`s right to continue improper use may be lost through abandonment. Local zoning ordinances often state that any cessation of non-compliant use for a period of time is a task. If the specified period is reasonable, cessation of use for that period is equivalent to a waiver of use. It was decided that local notice periods also apply if the owner can prove that he did not intend to renounce the use contrary to the contract. A church-run school is entitled to the «grandfather clause» of the building code and the determination of «improper use» of the zoning ordinance. The Uniform Building Code provided that «buildings existing at the time of the enactment of this Act may retain their existing use or use if such use or use was lawful at the time of the enactment of this Act, provided that such continued use is not life-threatening.» There has been no attempt to demonstrate or determine that the continued use of the building as a church would be life-threatening. The policy to continue to allow non-compliant uses stems from concerns that the application of zoning by-laws to uses that existed prior to the enactment of the by-law could be interpreted as confiscatory and unconstitutional. It was assumed that by limiting their expansion and reconstruction, they would disappear over time. Approval of non-compliant uses has been characterized by the courts as «reluctant tolerance»; The right of municipalities to take appropriate measures to eliminate them has been recognized. The ultimate goal of the zoning code is to standardize land use in each zoning district, which can only be achieved by eliminating uses that do not meet the specifications of the county bylaws. State law does not regulate non-compliant uses, structures, or lots.

Therefore, local courts are free to set their own standards for regulating such non-conforming situations within certain constitutional limits. The existing valid non-compliant use of the mining operation was subject to the subsequent order of the county police, which required the operation to obtain a grading permit before it could complete its ongoing excavation and resupply operations. An adaptation committee had the authority to approve an application to construct a building on a car demolition site, even if the application was to extend an already existing non-compliant use, because the zoning order did not prohibit the extension or extension of a non-compliant use, and because the extension would improve unsightly conditions in the yard. In Sims and Others v. Dashko, 1975 CarswellOnt 1185 (CAMO), for example, the Ontario Municipal Board (the «Board») overturned the committee`s decision to grant an extension to a bakery that existed as a non-compliant legal use in a residential neighbourhood. The decision was reversed due to the extension`s negative effects on nearby properties, such as a reduction in solar radiation. The use of the land must be determined prior to the passage of the zoning ordinance in order to be considered a non-compliant use thereafter. The mere acquisition of immovable property and its use is not sufficient to establish an existing non-conforming use. Section 34(9) of the Planning Act applies to prevent new municipal zoning ordinances from interfering with the subsequent lawful use of one`s own land, building or structure.

Without this provision, landowners and commercial owners would have less stability and would be subject to all changes to the zoning ordinance. However, restrictions on how an owner can modify an existing non-compliant legal use are intended to reduce or eliminate non-compliant uses in the long term. When passing zoning by-laws, the local legislature is primarily concerned with the separation of incompatible uses between zoning districts. If a building that existed prior to the zoning requirements does not comply with the residue, area or height restrictions, it is not a non-compliant use in the technical sense. It simply does not comply with the dimensional requirements of zoning: a non-compliant building. Because non-compliant buildings do not violate the legislative policy of separating incompatible uses, zoning by-laws often do not restrict their expansion or reconstruction as much. For example, a typical zoning determination may require that no extension or reconstruction of a non-compliant building can increase the level of non-compliance or cause new non-compliance. There are three broad categories of non-compliant use claims that can be referred to the committee: The court ruled that an intruder on land cannot legally prove valid non-compliant use, in which case the use was a car demolition yard overwhelmed by neighboring properties. The court sent the case back to the higher court to determine whether the use of the land in question was allowed, so there was no trespassing. Typically, non-compliant conditions of use are included in the zoning code when it is originally adopted. They are usually included in a separate section or article of the code.

These provisions provide protection against court decisions that, without them, the zoning order could be considered confiscatory when applied to existing development and as a means of gaining public support for zoning generally. Currently, the Planning Act allows for the legal use of land, buildings or structures that continue despite changes to zoning ordinances in the area, providing some security for landowners and business owners. Strict rules for applications to extend or modify the use of the land, building or structure are intended to eliminate non-compliant uses in the long term. Motions or appeals about non-compliant uses before committee or council can be complex issues that often require expert evidence (see our article «Land Use Planning Evidence: The Foundation of Your Municipal Purpose» for more information). Local lawyers can help you draft the strongest motion or appeal before the committee or council to protect your land or business investment. State laws that give local governments the power to enact zoning regulations implicitly empower local legislators to take reasonable steps to protect the legitimate investment expectations of developed land owners. However, these enabling laws do not expressly refer to the authority of local legislators to authorize the continuation of non-compliant uses. When an expansion of non-compliant business activities is proposed, the case law is somewhat less clear.

If roads and structures built on land used for gravel extraction showed the owner`s intention to use the entire property, the court ruled that the extension of mining operations to another location on the property was permitted. However, the addition of a body toning operation to the premises where a non-compliant beauty salon was located was considered a prohibited extension of the previous non-compliant use.