7.             By-law 2008-250, Legal, Non-Conforming Uses, Motion for Leave to Appeal

 

Règlement 2008-250, utilisations légales dérogatoires, motion en autorisation d’appel

 

 

Committee recommendation

 

That Council confirm the seeking of leave to appeal by the City Clerk and Solicitor in respect of the decision of the Ontario Municipal Board concerning Section 3 of By-law 2008-250.

 

 

Recommandation DU Comité

 

Que le Conseil confirme que le greffier municipal et chef du contentieux cherche à obtenir l’autorisation d’en appeler de la décision de la Commission des affaires municipales de l’Ontario concernant l’article 3 du Règlement 2008-250.

 

 

 

 

 

 

 

 

Documentation

 

1.                  City Clerk and Solicitor’s report dated 31 August 2009 (ACS2009-CMR-LEG-0020).

 

2.         Extract of Draft Minutes, 8 September 2009.


Report to/Rapport au :

 

Planning and Environment Committee

Comité de l;urbanisme et de l’environnement

 

and Council / et au Conseil

 

31 August, 2009/le 31 août 2009

 

Submitted by/Soumis par : M.Rick O'Connor, City Clerk and Solicitor/Greffier et Chef du contentieux

 

Contact Person/Personne ressource : Timothy Marc, Senior Legal Counsel

Legal Services/Services juridiques

(613) 580-2424 x21444, timothy.marc@ottawa.ca

 

City Wide/à l’échelle de la ville

Ref N°: ACS2009-CMR-LEG-0020

 

 

SUBJECT:

By-law 2008-250, Legal, Non-Conforming Uses, Motion for Leave to Appeal

 

 

OBJET :

Règlement 2008-250, utilisations légales dérogatoires, motion en autorisation d’appel

 

 

REPORT RECOMMENDATION

 

That Planning and Environment Committee recommend that Council confirm the seeking of leave to appeal by the City Clerk and Solicitor in respect of the decision of the Ontario Municipal Board concerning Section 3 of By-law 2008-250.

 

RECOMMANDATION DU RAPPORT

 

Que le Comité de l’urbanisme et de l’environnement recommande au Conseil de confirmer que le greffier municipal et chef du contentieux cherchera à obtenir l’autorisation d’en appeler de la décision de la Commission des affaires municipales de l’Ontario concernant l’article 3 du Règlement 2008-250.

 

BACKGROUND

 

Following upon the second Ontario Municipal Board pre-hearing in February, 2009, a series of hearings have been scheduled with respect to sections of the comprehensive zoning by-law, By-law 2008-250, that have been appealed to the Ontario Municipal Board.

 

One of the matters appealed to the Board by The TDL Group Corporation was Section 3.  The text of Section 3 is attached as Document 1 to this report.  The principal thrust of the appeal by TDL was that the relevant legislation, Planning Act, does not permit a municipality to prohibit voluntary damage or destruction, and the subsequent repair or replacement, of a legal, non-conforming use if the repaired or successor building complies with the legal, non-conforming rights that it had 34(9).  That clause reads as follows:

 

34(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;

 

TDL also advanced the position that as “damage” within the by-law is an undefined term, the language of the by-law could conceivably prohibit the replacement of doors or windows, exterior work on a building or roof repair.

 

The matter came before the Board in June 2009 with the decision of the Board being released on July 28, 2009.  While the City did present authority directly on point providing that voluntary demolitions resulted in the termination of legal, non-conforming rights, the Board was of the view that such a decision was inconsistent with the general direction of higher level court decisions.  The Board concluded as follows:

 

The cases cited by the Appellant, especially the decisions of the Supreme Court

of Canada, Central Jewish Institute v. City of Toronto and Saint-Romuald (City) v.

Olivier affirm the right of a landowner to continue with a legal non-conforming use.

 

The Board therefore directed that Section 3 be repealed.  The link to the Board’s decision is under Supporting Documentation.

 

Pursuant to the Delegation of Authority By-law, Schedule “A”, Section 36, the City Clerk and Solicitor is authorized to take any necessary action to protect the legal position of the City.  A Notice of Motion for Leave to Appeal was therefore filed with respect to the decision of the Board and confirmation of this action is now being sought from Committee and Council.

 

DISCUSSION

 

It has been a long-standing common understanding that the voluntary demolition of a building leads to the end of any legal, non-conforming rights.  While Clause 34(9)(a) of the Planning Act protects the status of a building at the time the applicable zoning is changed, where such building is voluntarily demolished, it is the view of Legal Services that it cannot be said to be “continued to be used for” its purpose as existing on the date the by-law was enacted.  As a result, it is the opinion of Legal Services that the decision is incorrect in law and ought to be reversed by the Divisional Court.

 

Further, Subsections 3(6), (7) and (8) of the comprehensive zoning by-law actually grant additional rights to those allowed by the Planning Act, Clause 34(9)(a).  In particular, Subsection 3(8) permits development on lots of record in certain rural zones (RU, V1, V2, V3 or VM) even though the lot is substandard in area or width.  TDL did not request the repeal of these three subsections but their repeal was nonetheless ordered by the Board.  It is the opinion of Legal Services that the repeal of these three subsections had no foundation in the evidence and argument proffered to the Board and the Board thus also erred in law with respect to these subsections.

 

In order to be granted leave to appeal, the following two-part test must be satisfied:

 

1.                  There must be reason to doubt the correctness of the decision of the Ontario Municipal Board; and

2.                  The matter must be of sufficient importance to warrant the attention of Divisional Court.

 

As discussed above, it is Legal Services’ view that there is reason to doubt the correctness of the Board’s decision.  As to the second part of the test, given the admitted widespread utilization of provisions such as Section 3 by municipalities, it is also Legal Services’ opinion that this is a significantly important matter to warrant the attention of the Court.

 

RURAL IMPLICATIONS

 

The repeal of Subsection 3(8) concerning lots of record in rural areas of the City has significant rural implications.  It has been agreed by the Chair of the Agriculture and Rural Affairs Committee that in order to permit this report to be considered by Council on 23 September 2009 that this report would only rise to Planning and Environment Committee prior to submission to Council.

 

CONSULTATION

 

The TDL Group Corp has been advised that this report will be considered by Committee on 8 September 2009.

 

FINANCIAL IMPLICATIONS

 

The Motion for Leave to Appeal can be accommodated within the budget for the City Clerk and Solicitor department.

 

SUPPORTING DOCUMENTATION

 

Document 1-By-law 2008-250, Section 3, Link to Decision of Ontario Municipal Board:

 

http://www.omb.gov.on.ca/e%2Ddecisions/pl080959%2Djul%2D28%2D2009.pdf

 

DISPOSITION

 

City Clerk and Solicitor to pursue  Motion for Leave before Divisional Court.

 


DOCUMENT 1

SECTION 3

BY-LAW 2008-250

 

3.

(1)

Nothing in this section affects subsection 34(9) of the Planning Act, R.S.O. 1990, Excepted Lands and Buildings, which addresses non-conforming uses.

 

(2)

No person will repair or rebuild any part of any building housing or otherwise used in connection with a non-conforming use, except as set out in subsection (3).

 

(3)

When a building, structure, facility or otherwise, including septic and other servicing systems, used in connection with a non-conforming use is damaged or demolished, the non-conforming right is not extinguished if: (By-law 2008-462)

 

 

(a)

the damage or demolition was involuntary;

 

 

(b)

the building is repaired or re-occupied before the expiry of two years; and

 

 

(c)

the building continues to be used for the same purpose after it is repaired as it was used before it was damaged or demolished.

 

(4)

Non-conforming rights are extinguished:

 

 

(a)

where the damage, demolition or removal of a building is not involuntary;

 

 

(b)

where a damaged building is not repaired or re-occupied before the expiry of two years; or

 

 

(c)

where the non-conforming use,

 

 

 

(i)

is abandoned, or

 

 

 

(ii)

is changed without permission from the Committee of Adjustment.

 

(5)

This section applies, with all necessary modification, to a non-complying building.

 

(6)

Despite subsection (2), an addition to an existing principal building; a new accessory building, or an addition to an accessory building on land that is legally non-complying with respect to lot width or lot area is permitted if:

 

 

(a)

the addition or new accessory building conforms to all other provisions of this by-law; and

 

 

(b)

no additional dwelling units, rooming units or secondary dwelling units are created.

 

(7)

Despite subsection (5):

 

 

(a)

a permitted use in a building or lot that does not comply with the regulatory provisions of this by-law may change to another permitted use without the need for a minor variance from the Committee of Adjustment, provided that the regulatory provisions are no more restrictive for the new use.

 

 

(b)

the construction of an addition to a building or a permitted projection into a yard of a building that does not comply with the provisions of this by-law, is permitted without the need for a minor variance from the Committee of Adjustment, provided that:

 

 

 

(i)

where compliance of certain provisions has been met with the existing building, compliance must be maintained;

 

 

 

(ii)

any addition or a permitted projection into a yard to a non-complying building that proposes to expand the existing non-complying building envelope must move towards compliance with the zoning regulations such that the extent of the proposed addition falls at least halfway between the required provision and existing non-complying situation; and (By-law 2009-164)

 

 

 

(iii)

despite subclause 3(7)(b)(ii), this provision does not apply to building height or parking.

 

(8)

Despite Section 2 - Compliance with Zoning By-law, development is permitted on any vacant lot existing as of the date of adoption of this by-law and which lot is legally non-complying with respect to lot width or lot area provided:

 

 

(a)

the proposed use is a use permitted in the zone in which the lot is located;

 

 

(b)

the proposed use does not contravene any other zone provisions; and

 

 

(c)

the lot is zoned RU, V1, V2, V3 or VM.

 

 


BY LAW 2008-250, LEGAL, NON-CONFORMING USES, MOTION FOR LEAVE TO APPEAL

RÈGLEMENT 2008-250, UTILISATIONS LÉGALES DÉROGATOIRES, MOTION EN AUTORISATION D’APPEL

ACS2009-CMR-LEG-0020                               City wide / À l’échelle de la ville

 

Tim Marc, Senior Legal Counsel, advised that there have been a series of hearings involving the comprehensive zoning by-law.  He explained that TDL Group brought forward a motion to have Section 3, which speaks to legal non-conforming rights, struck from the by-law.  Mr. Marc outlined the arguments raised at the hearing, which included:

·    There is no definition to the word “damaged”, in the prohibition on the replacement of voluntarily damaged or demolished buildings.  The City agrees that a definition should be included should the section be reinstated.

·    There is no statutory basis for differentiating between voluntary and involuntary demolitions of legal non-conforming uses. 

·        TDL Group contends that a voluntarily demolished building with legal non-conforming rights can be rebuilt to the previous footprint.

·    The City’s interpretation is that legal non-conforming rights would be extinguished as a result of voluntary demolition.

 

Mr. Marc recounted that they were unsuccessful at the OMB hearing.  Staff are recommending to seek leave to appeal before the Divisional Court.  Due to timing issues, they were unable to come before Committee and Council before filing the appeal; however, the City Solicitor has the authority under the Delegation of Authority By-law to file an appeal to protect the City’s position.

 

As a more minor matter, there are three subsections of the by-law that provide additional rights, not conferred by the Planning Act.  One example involves some rural designation where the legal non-conforming righter cannot meet the size or set back requirements.  TDL did not ask that these subsections be repealed but the OMB did so.   The Chair of the Agriculture and Rural Affairs Committee agreed that this report would only come before Planning and Environment Committee due to timing issues.

 

In response to questions from the Chair, Mr. Marc clarified that staff have interpreted for some time that if a building with non-conforming rights is demolished voluntarily it would lose those rights.  He reiterated the City’s position that once one tears down an existing building, legal non-conforming rights, such as a wall that infringes on the rear yard amenity space, are lost.

 

Michael Pollowin, TDL Group, disagreed with how Mr. Marc characterized this problem.  He argued that Section 3 removes legal non-conforming and non-compliant rights as a result of any form of voluntary damage or demolition.   He advised that case law does not support this, including a decision of the Supreme Court of Canada.  Referring to the case that was before the OMB, he quoted excerpts from the decision:

·    “The Board finds that Section 3 of the zoning by-law permits a property owner to rebuild or make repairs to a building with a non-conforming use or which is non-complying if the rebuilding or repairs are involuntary.  That is the repair or rebuilding is required following an event like a fire or a flood; however, if a property owner repairs or rebuilds voluntarily to maintain upgrade or modernize the building, the non-conforming or non-compliant right is lost.  Mr. Leclair, on behalf of the City, confirmed that this is the effect of Section 3 of the zoning by-law and reflects the City’s intent to gradually phase out existing non-conforming uses.”

·    “The Board finds that Section 3 of the zoning by-law specifically operates to prohibit such renewal and change.  Mr. Leclair, on behalf of the City, agreed that if the appellant replaced a window in one of its stores or updated the exterior the appellant would lose its right to the legal non-conforming use under Section 3 of the zoning by-law.  Neither Section 34.9A of the Planning Act nor the decisions of the Supreme Canada permit such a result.”

 

Mr. Pollowin surmised that a right, which was acquired legally, cannot be taken away.  He argued the Divisional Court would agreed with his arguments, which were accepted in totality by the OMB, and suggested the City not pursue an appeal.  The new comprehensive zoning by-law changed a number of performance standards, resulting in a huge number of legally non-complying and non-conforming properties.

 

In response to a question from the Chair, Mr. Pollowin reiterated that the OMB ruled that neither the Planning Act nor the Supreme Court of Canada do not allow the extinguishment of rights due to voluntary damage or demolition.

 

Mr. Marc rebutted that the City won a case where a building, that was damaged by a fire and then given an order to repair or demolish, was not permitted to rebuild to the previous non-conforming footprint.

 

Mr. John Smit, Manager of Urban Developmental Review, provided comments on this matter as a professional planner with more than 20 years experience.  The principle has always been that voluntary removal of a building containing a legal non-conforming use would prohibit the right to re-establish that use in a replacement building, unless a zoning change is sought.  If the removal is involuntary, rights would be retained. 

 

Mr. Pollowin objected to Mr. Smit’s comments, reiterating his earlier comments with respect to the findings of the OMB.  He advised that he would be advising his client to seek costs from the City if successful before the Divisional Court.

 

In response to further questions, Mr. Marc provided the following clarifications:

·    If not granted leave to appeal, the OMB decision would represent leading authority in favour of Mr. Pollowin’s position.  If granted, the next step would involve arguing the case before a full panel of Divisional Court. 

·    The Province speaks through the Planning Act or Policy Statements.  The Province will be advised of the matter.

·    The by-law speaks to “damage” but lacks a definition, which should be prepared. 

 

Councillor Holmes noted that her ward has many legal non-conforming uses.  She expressed support for the position articulated by Mr. Smit, noting an application can be made to the Committee of Adjustment to re-establish the use.  She expressed support with pursuing the appeal.

 

That Planning and Environment Committee recommend that Council confirm the seeking of leave to appeal by the City Clerk and Solicitor in respect of the decision of the Ontario Municipal Board concerning Section 3 of By-law 2008-250.

 

CARRIED with G. Hunter and P. Hume dissenting.