The Power of 'Intent'

Looking at the Long Point Region Conservation Authority (LPRCA) May 2nd, 2018 Agenda (Pg. 30-39) the property owner in question with the recent news articles by Simcoe Reformer and Norfolk Today, did apply for their change house permit over a year ago, and as Councillor Brunton said his understanding was the OMB Ruling was not currently in effect yet. Norfolk Staff even thought the ruling was odd this way, in that usually a completed bylaw is included with the ruling. Mr. Chris Baird (GM, Norfolk County) though is holding to the April 16th, 2018 date for the new rules being in effect. I personally would like more clarification on this, since County Staff a couple weeks ago at another Council Meeting did agree definitions still need to be defined for this OMB Hastings Bylaw and these can be appealed by anyone.

Also, I contacted LPRCA Staff after the OMB Ruling to ask about the validity of many permits still active (2 years valid) for many Hastings property owners, and this is the email response I got from the LPRCA Regulations Officer, "The LPAT/OMB decision for Hastings Drive relates to matters dealt with under the Planning Act. Permits issued from LPRCA are under the Conservation Authorities Act and the recent decision does not affect the validity of these permits”.

Keep in mind the five of the seven or so change house LPRCA permits issued on Hastings Drive in the last couple years were all recommended by LPRCA Staff to not be approved by the Board, because they were all below the 100 year high water mark and susceptible to flood & erosion hazards. The Board went against Staff recommendations as they do occasionally for projects throughout the County and issued permits. And, the County does not issue permits for change houses under 108 square feet. Yet, there were two change house LPRCA permits issued over the last few years that were LPRCA Staff approved (which means they never went to a Board hearing), and the reason being, they were proposed to be above the 100 year high water mark and on top of an elevated dock, which was not susceptible to the flood and erosion hazards. One of these permits being for my change house.

I wish in the future when LPRCA Staff do not recommend approval on applications, they include for the owner’s benefit ways of construction that would get staff’s approval (they sometimes do this yet not often enough). You, do not get your application fee back if LPRCA Staff and the Board deny it.

Council Meeting May 8th, 2018 - Regarding Hastings Drive LPRCA Permit for Change House Recently Issued

Councillor Black: “I thought we were going to get the Hastings Bylaw back, it’s been 2 weeks, it’s not here, is it another 2 weeks, why isn’t it here?”

Grozelle, County Clerk: “I believe, there was an email from the case coordinator yesterday, reviewing it all and anticipating a response by end of this week”

Councillor Brunton: “are we not still under the 85 Bylaw until the new Bylaw is written, Mr. Baird?”

Chris Baird, Norfolk GM - OMB Ruling is in effect immediately and the County is just seeking clarification to get the proper wording to use with an enforceable Bylaw, “but, the intent is still there from the moment that decision was made.”

So ‘intent’, as you can see from Mr. Baird has great power on a legal scale he feels, so I would like to explore intent in more detail below.

I can’t speak for this specific property owner, yet quickly glancing at their scenario, their intent was established to build the change house well before the OMB Ruling on April 16th, 2018 when they filed the application with the LPRCA over a year prior when change houses were still legal on Hastings Drive. Case law shows that 'intent' does specifically have legal non-conforming status, and Mr. Baird further shows at the Council meeting that intent has great power.

Recently with an April 4th, 2018 storm which brought in extreme winds and significant water surges, a cottage was popped off it's foundation at the end of Hastings Drive. This cottage was quickly condemned by local emergency services and considered unsafe for habitable use. The 'intent' of the OMB Ruling came into effect as of its issue on April 16th, 2018, as the County Manager, Chris Baird stated at the May 8th, 2018 Council Meeting. On the day of the OMB Ruling, the cottage which was damaged on April 4th, had lost the habitable-use of their structure, since it was not repaired and still considered to be inhabitable by the authorities. So without, the property owner's 'intent' to fix the cottage, this structure would technically now be considered illegal to fix going forward from the OMB Ruling date, since no new uses or changes in uses such as changing a structure from inhabitable to habitable would be allowed, along with no site alteration and no new development going forward. Yet, the owner maintained their intent to repair their cottage to the old footprint (both prior to the OMB ruling and after), and therefore was legally allowed to lift and repair their cottage after the April 16th OMB Ruling as a result of this legal non-conforming intention. This is an excellent example of the Power of Intent on the same street now being argued over a 100 square foot change house in the recent news articles, which had no mention of this cottage recently being damaged and now rebuilt.

Some may argue that since they started to rebuild their cottage fast, that is why the authorities allowed this. There are examples of Ontario case law, some which I've sited below, clarifying that there are no time restrictions on intent for Legal Non-Conforming uses or structures on ones property. If this property owner did not have the finances to properly fix his cottage this year, yet intended to fix it the following season after saving up some money, this intent would also be allowed to legally do so.

So the big question I have is; Our family has always and continuously ‘intended’ to rebuild the family cottage after the 1985 Act of God December storm, is that 'intent' not legally still recognizable? Was a one month time limit deemed by the County to fix our family cottage frozen to the ground legally allowed to be given at the time, followed quickly by an interim control bylaw prohibiting damaged cottages to rebuild. Now that one cottage finally has the right to rebuild/fix their cottage after an Act of God and after to the OMB Ruling, does this not finally recognize the rights of intent for others who have always intended to rebuild yet were constantly stopped by the authorities, due to a "no rebuild policy" implemented?

Also, I would like to bring forth another more practical example. Say a property owner purchased land which they could build on, got all approvals and permits necessary at the time, then over the next several months started providing down payments for building materials and booking all the trades for the build. Then a Bylaw is passed restricting development on their land, on a date one day prior to the construction scheduled to start, should that property owner be stopped immediately by the authorities now that the Bylaw has been passed, even though their permits are still valid?

If you agree with this cold stop, then the owner would take a big loss on down payments of trades and materials, which if it were a custom home could be in the hundred's of thousands of dollars, and the change house and damaged cottage on Hastings Drive should not be constructed or rebuilt/fixed. If you agree that the property owner, still has valid permits and always intended to build the structure when at the time it was legally allowed and therefore now can continue to build their structure which going forward would be considered legal non-conforming, then you agree with precedent setting Ontario Case Law regarding intent, along with the Planning Act subsection 34.(9).

A lot of legal matters it looks to be for some, that will unfortunately keep Hastings Drive in the lime light for the time being. Remember there’s always two sides to any story.

Here’s the exact point of the recent Council Meeting on May 8th, 2018 for everyones reference, that caused the recent news articles:

Case Law Examples Relating to 'Intent':

Legal Non-Conforming Uses Under the Planning Act (Wood Bull LLP, 2006)

Discontinuance caused by Damage to the Land, Building or Structure (Pg. 19)

Where the non-conforming use is interrupted due to circumstances at least partially outside of the owner’s control, where the owner maintains an intention to resume the use throughout the period of interruption, and the owner uses the land throughout the period of interruption to the extent possible, the use will be continued for the purposes of subsection 34(9).33

(Pg. 13)

Establishing the intention of the owner will be an important factor in determining whether the use has continued. With respect to this issue, I.M. Rogers in the Canadian Law of Planning and Zoning has noted, at pp. 210.57:

“No clear definition exists as to what constitutes a discontinuance of use. Discontinuance may be equivalent to abandonment which requires an intention to abandon. In Ontario, cessation of use may show that the owner intended to discontinue the use but his intention is also an important factor in determining continuance non-conforming use.”


Pg. 4

Similarly, the City of Orillia allows the rebuilding or repair of any building or structure that is damaged or destroyed by causes beyond the control of the owner “provided such rebuilding or repair is conducted within two years” (Zoning By-law 2005-72, s. 3.4.5). However, as the Board held in its decision at page 11, and which was affirmed by the Divisional Court, “[i]f a landowner demonstrates a continuous intention to continue a long-established pattern of usage, there is no loss of its right, regardless of the time it takes to complete repairs.”

The above examples of zoning by-laws from across Ontario demonstrate the extent to which municipalities attempt to “encourage” or cause the “evolution” over time from legal non-conforming uses to ones in conformity with current zoning by-laws. The judgment in Ottawa (City) v. TDL Group Corp. represents for the first time a clear and unambiguous ruling that such efforts by municipalities are contrary to section 34(9)(a) of the Planning Act and are, therefore, beyond their jurisdiction. Municipalities must ensure that their zoning by-laws conform to the law with respect to legal nonconforming rights.

Pg. 2

TDL referred the Board to numerous cases standing for the proposition that as long as the intention of an owner is to continue a long-established pattern of usage, then there can be no loss of a non-conforming use as a result of damage or demolition, whether it was voluntary or non-voluntary.

In oral evidence before the Board, the City’s land use planner confirmed that the effect of section 3 of the CZBL was that “if a property owner repairs or rebuilds voluntarily, to maintain, upgrade or modernize the building, the non-conforming or non complying right is lost” (page 3). In fact, according to the City’s planner, the City’s intent [of section 3 was] to gradually phase out existing legal non-conforming uses.

The OMB rejected the City’s argument in this regard and determined as follows at page 10: [O]n a clear reading of section 34(9)(a) of the Act . . . such a municipal intent and effect of a zoning by-law is not permitted by the Act.

Finally, the Board rejected the two-year limitation period for repairing and reoccupying specified in sections 3(3)(b) and 3(4)(b) of the CZBL. The Board wrote at page 11: Again, there is nothing in section 34(9)(a) which allows for the extinguishment of a landowner’s right to a legal non-conforming use if repairs or renovations are not completed before the expiry of two years.

As noted above, “intention” is determinative. If a landowner demonstrates a continuous intention to continue a long established pattern of usage, there is no loss of its right, regardless of the time it takes to complete repairs. The Board then ultimately concluded that “section 3 of the CZBL, in its entirety, improperly narrows, amends and restricts the right of a property owner to a legal non-conforming use, contrary to section 34(9)(a) of the Planning Act. Section 3 is beyond the jurisdiction of the City” (page 11).

Planning Act of Ontario

Zoning by-laws are not retroactive in their effect. That is, when the municipality passes a zoning by-law, it will only apply to all subsequent development. This is because the legislation that permits a municipality to pass zoning by-laws, the Planning Act of Ontario specifically provides in subsection 34.(9):

“(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; or

(b) to prevent the erection or use for a purpose prohibited by the by-law of any building or

structure for which a permit has been issued under subsection 8 (1) of the Building Code Act,

1992, prior to the day of the passing of the by-law, so long as the building or structure when

erected is used and continues to be used for the purpose for which it was erected and provided

the permit has not been revoked under subsection 8 (10) of that Act.”

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