Wrongs Made Right

Lake Erie was at it’s highest water level in 20 years this past March and creating a recipe for disaster when the gale force south west winds came on April 4th, 2018. After more then 12 hours of waves building to significant heights, the Lake Erie Northern shoreline was taking a beating and much damage not only was seen on the Canadian yet also US shorelines.

At the very end of Hastings Drive in Long Point, one cottage had the misfortunate of being knocked off it’s footings, with much of its deck torn away. When I received a picture of the damaged cottage, it had a striking similarity to the aftermath of the 1985 storm. And, no pun intended, a very erie similarity to the damage of our family cottage also located on Hastings Drive, which was popped off it’s footing with the deck ripped away during the December 1985 storm.

The stories of these similar cottages on the same street known as Hastings Drive, have a very different path from this point on. The story of our family retreat and many of our neighbours has no happy ending, so I’ll make it brief. After the 1985 winter storm, with the damaged cottage frozen to the ground my grandparents and many others were given written notice by the County to move their cottage within one month or else it would be removed at the owners expense and threats of the road being permanently shutdown were looming. We could not meet this strict deadline. Shortly after the deadline, the cottage was mysteriously burnt down, and the footings still to this day show these burn marks. Rebuilding was strictly prohibited on Hastings Drive going forward by the County and LPRCA.

The story of the recently damaged cottage now differs in that, nearly 33 years later Norfolk County and LPRCA have not provided a strict deadline to fix the damaged cottage yet done the opposite and rallied behind the owner to quickly get their cottage fixed, lifted and out of harms way. Issuing permits extremely fast paced due to the severity of this emergency situation. Recognizing that it is the property owner's legal right to fix their cottage and not lose their entire investment, which I can only assume is more then $400,000.

With a recent April 16th, 2018 Hastings Drive OMB ruling, no new development or site alterations is allowed going forward, along with the 1989 Shoreline Management Plan recommending a "no rebuild" policy, many were asking me the question how are they allowed to rebuild? The answer is Legal Non-Conforming Rights. These rights are very strong and of great value for a property owner to have and retain. I applaud Norfolk County and the LPRCA for finally recognizing these rights on Hastings Drive and expediting the permit process to make this cottage safe again. This clearly shows that legal non-conforming rights trump any past recommendations and any future By-laws.

The second question I’ve been asked is, how is this lot owner allowed to rebuild or fix the cottage when we and many others weren’t provided this opportunity in 1985? This is a hard one to answer yet also a very easy one. What happened after the 1985 storm damage was wrong and what is happening now is right. I am hopeful this is a sign of changing times for property rights on Hastings Drive, and that the regulatory agencies are consistent in this recognition of legal non-conforming rights going forward and the wrongs of the past can now be made right.

Legal Non-Conforming Case Law Examples

Legal Non-Conforming is often just associated with physical structures on ones property, yet it also directly applies to any legally established uses. For example, a campfire and roasting marsh mellows at 11PM, followed by stargazing at midnight, then pitching a tent for the night, all while parking a vehicle on your property. Overnight uses which physically have no structure have the ability to be considered legal non-conforming if a property owner can show clear evidence that these uses were legally established and allowed by the bylaws at the time and continued forward unimpeded.

Ottawa (City) v. TDL Group Corp., 2009 Carswell Ont 7168 (Ont. Div. Ct.)

This case provides a clear and unambiguous ruling that municipalities may not limit or coercively bring to an end non-conforming or non-complying rights beyond the narrow constraints permitted by the Planning Act, R.S.O. 1990, c. P.13 and at common law.

Legal Non-Conforming Uses Under the Planning Act (2006)

In this paper the concept of legal non-conforming use is discussed, as it is known in Ontario, or as the Supreme Court has described it more generally, “the doctrine of acquired rights”. Private law has long protected adjoining owners in the enjoyment of the amenities of their land.

To counter the concern about confiscation without compensation, lawful existing uses came to be protected under the concept of "acquired rights" both under the Civil Code in Quebec, and by judicial interpretation in the common law provinces: Toronto (City) v. Wheeler (1912), 4 D.L.R. 352 (Ont. H.C.), per Middleton J., at p. 353: [I]t is, I think, a sound principle that the Legislature could not have contemplated an interference with vested rights, unless the language used clearly required some other construction to be given to the enactment. (…) It is against that background that the modern regime of land use controls, with their inherent tension between the owner's interest in putting its own property to what it regards as the optimal use and the municipality's interest in having all of the land within its boundaries organized in a plan which it thinks will maximize the benefits and amenities for all inhabitants, should be interpreted

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