Keep Calm it's Business as Usual

I tip my hat to any long-standing "vacant" property owner continuing to use their lot for another and many more summer seasons to come. One may say, "just carrying on with business as usual, same as the cottages, and the OMB Ruling has no effect on long standing owners".

Norfolk County Planning Staff admitted while testifying at the OMB hearing, that their long-term objective was to eventually eliminate all legal non-conforming uses in Norfolk County and to have all cottages eventually gone from Hastings Drive one day.

This goal of Staff is surprisingly in compliance with the Planning Act, yet it is not ok, to willing through new policy implementation choke out legally acquired rights, as case law has shown. Removal of acquired rights has to be done naturally, without any push. For example, if someone does not pay property taxes for three years, and the property is sold in a tax sale, all acquired legal non-conforming rights previously associated with this property would be considered lost to the new owner.

The Jerome et al Party, which includes the Jerome, Body/Hamel, Waite and Corke/Neely family properties, on multiple attempts have contacted Norfolk Staff during the MHBC Issues and Options Hastings Study and afterwards for recognition and the application process for officially obtaining legal non-conforming status on certain long-standing acquired uses pre-dating the 1-NO-1985 Bylaw. There are standard processes for this currently available in many Municipalities, here is an example of the Town of Whitchurch-Stouffville Legal Non-Conforming Uses Guide and Application Form. While we were able to coordinate a meeting with Staff and confirm this process exists, we have been unable to formally get applications and begin this due process. All requests have been ignored.

MHBC Planning in their final report proposed a Hastings Bylaw (OMB Ruling Point 35), which did recognize "legally existing uses" can carry forward as non-conforming after the Bylaw is implemented. Yet, MHBC only defined legally existing uses as 'vacation homes' and their accessories. Nowhere in the Planning Act, PPS or Case Law is a legally existing use defined only as a vacation home or even as a structure alone, legal uses can be as simple as family campfires at midnight while watching the August meteor showers, then pitching a tent and parking a vehicle overnight. While this assessment by MHBC is correct, it was very limited in scope, and a site-by-site assessment of any legally existing uses on all properties (cottage and "vacant") on Hastings Drive should have been completed.

A lot of time and resources could have been saved for all, if this process was properly implemented and carried out from the beginning of the Hastings Study in 2014, if long-standing owners and their acquired rights were reviewed individually and recognized (or not). Yet, this process which is our right as a property owner, never occurred and long-standing owners are now just carrying on as they always had, quietly and reasonably enjoying their properties (both during the day and at night), with the assumption that their long-time uses are automatically considered legal non-conforming as the cottages are. If one does not continue a legal non-conforming use, you lose it forever, unless their was 'intent' to continue the use later (view my past blog post on the 'Power of Intent').

In my opinion, Norfolk County Staff would rather the public believe that all "vacant" lots are abandoned and there are no legally acquired uses associated with them. Basically, ignore them and they will eventually go away, has been the attitude our family has constantly seen. This method has actually worked in the County's favour for many years, since some Hastings "vacant" lot owners rebelled the only way they knew how to, by not paying property taxes, which allowed the County to absorb or sell the lot in public tender in more recent years.

Identifying legally acquired uses is done on site-by-site basis (as the OMB Hastings Ruling stated in Point 15), some of the "vacant" lots on Hastings do have legally acquired structures, many which were established prior to 1985 and continued forward which included break-walls, sewage holding tanks, structural footings, boat ramps, docks, driveways, change houses, fences… etc. Along with legally acquired uses (not a physical structure, yet still very much recognized by the Planning Act), which could include yet are not limited to parking a car or boat overnight, trailers, camping, and just in general over night recreational use of their lots (campfires, star-gazing, fishing). Not to mention, some of these long-standing property owners have continually paid property taxes since as far back as the 1940's.

Planning Staff, would have you believe that if through an Act of God one was to lose the primary use of their property (cottage), you would also lose all the established accessory uses with it, such as a break-wall, fence, shed, parking a car overnight on your driveway,and pitching a tent or parking a trailer to accommodate overflow of the cottage. There is nowhere in the Planning Act that states these legally acquired accessory uses need to be removed if the primary structure is damaged/destroyed by and Act of God. If this were the case, the County would have and should have gone in and removed all shoreline protection on all "vacant" lots after the 1985 storm. They did not.

Keep in mind, zoning by-laws such as the OMB Hastings Bylaw are not retroactive in their effect. That is, when the municipality passes a zoning by-law, it will only apply to all subsequent development or uses. There is a significant difference both in planning and legal terms between 'new uses' and 'acquired uses', which needs to be explored by Norfolk Council and Planning Staff for long-standing owners on Hastings Drive.

The questions are; Will the County try to apply and enforce this new OMB Ruling onto us long-standing Hastings Drive property owner's who never bought Hazard Land and had almost no restrictions on their land uses? and will they attempt to choke out any legally acquired uses us long-standing owners have established over our more then half a century of family ownership and restrict us from never again stepping foot on their property after dusk and before dawn? Time will tell.

OMB Ruling - Hastings Drive Bylaw


Point [15] Nothing in this Decision should be read as directly or indirectly relating to any specific site or specific use that may be legal non-conforming. Legal non-conforming uses are dealt with on a site by site basis. This Decision does not deal with individual sites and does not make any decision on their status. Read full ruling here

There has been a misconception of this OMB Ruling in the news articles following, in that the Ruling only applies to "vacant" lots on Hastings Drive. This OMB ruling directly applies to all lots, both cottage and "vacant", on the unpaved section of Hastings Drive, and restricts any new site alteration, new uses and/or new development, yet has no impact on legally acquired uses pre-dating April 16th, 2018 for either cottage or "vacant" lots going forward. Refer to my past Blog post about the OMB Ruling, which goes into more detail of how it applies onto all lots on Hastings Drive.

Planning Act of Ontario

Zoning by-laws such as the OMB Hastings Bylaw 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.”

Case Law - Discontinuance caused by Damage to the Land, Building or Structure

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) (of the Planning Act).

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.

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

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