You may have noticed I’ve used quotations around “vacant lot” when doing past blog posts regarding my family property located on Hastings Drive. The reason for this, is my family and I have never felt our property was “vacant”, and don’t feel this is the proper word to be used when referencing it or others similar along Hastings Drive. The first word that comes to my mind when I think of a “vacant lot” is abandoned and that has never occurred on our family lot.
Surprisingly, it has been very difficult to find any official definition for a “Vacant Lot” in the Norfolk County Official Plan, Ontario Planning Act, Provincial Policy Statement or any other commonly referred to sources regarding land use planning in Ontario. The definition seems to be loosely used throughout many planning departments in Canada and I do feel requires a more comprehensive and consistent definition.
With a recent April 16th, 2018 OMB Ruling on Hastings Drive, Bylaw 38-Z-2018 was enacted which is very restrictive on 'vacant lots' and therefore this term and definition has now become very relevant. The Tribunal permitted "b) day, use, which is defined as being personal use and enjoyment of a vacant lot for a day which may include launching boats. Site alternation and new development shall not be permitted" The Norfolk County Staff follow-up memo on April 19th, 2018 identified that certain terms in the Ruling were not defined such as 'Change House' and 'Day Use', and definitions will be proposed to Council in a future zoning by-law update later by Planning Staff.
With no new development permitted going forward, why is there even a need to define the term 'Change House'. The term 'site alteration' is of more relevance for defining. If a property owner builds a sand castle, cuts their grass, or cleans up their beach is that considered 'site alteration'. More importantly if they have previously built sand castles this use may continue as legal non-conforming going forward and should not be stripped, yet hopefully it was well documented.
Knowing this, I hope Council and Staff bring reasonable attention and public input to these definitions and properly recognize that any uses previously established by property owners can not be stripped by this new very restrictive OMB Hastings ruling.
After doing some research of various interpretations, which I’ve provided below, I have combined them into what I think is an appropriate definition of a “vacant lot”.
"A vacant lot is a neglected or unused parcel of property that has no legally existing buildings, structures, improvements or uses associated on it."
Based on this definition, would our long-standing family property located on Hastings Drive currently be considered a “vacant lot” or not?
From 1947 to December, 1985 the family property had a vacation home located on it and was and currently still is part of a Registered Plan of Subdivision located on Hastings Drive. Following the Winter 1985 storm, the family cottage was damaged (knocked off the footings) and 7 weeks later when the cottage was still frozen to the ground, like many others, were quickly stopped for any attempt of rebuilding by the County's By-Law 911-86 Interim Control By-Law for Hastings Drive passed on January 24, 1986: "The purpose of this By-Law is to prohibit additions to or the replacement of dwellings which have been destroyed by storm conditions." Shortly following many damaged cottages, including ours was mysteriously burnt down.
So, I will answer the above question primarily based on the years following 1985 when our family cottage was not present and the authorities considered our lot to now be “vacant”.
Is the family property neglected? No. Every year family members have continued to pay property taxes, visited the property, cleaned garbage up, fixed any no trespassing/private property signs, and ensured the property markers and fencing were still in place (constantly vandalized). Game cameras and video surveillance in more recent years.
Is it unused? No. Every year both prior to 1985 and after family members continued to use the property for many uses including boating, fishing, swimming, beach going, camping (bbq, campfires, stargazing, tents and trailers) and just in general both day and night recreational use all while parking a vehicle on the lot.
Are there any existing structures? Yes. The shoreline protection installed in the 1970’s including timber posts, granite boulders and cement, is considered a structure. The sewage holding tank installed in the 1980’s is also a structure which is still there to this day and on inspection is in good shape. The original 1959 cottage footings and the cement fireplace are still there to this day. Along, with fence posts and parking areas established with clay shipped in when the cottage was still present.
Are there any improvements? Yes. Over the years MNRF and LPRCA approvals were obtained to move back encroaching cement slabs from the road allowance. In 2017 permits and approvals were obtained to maintain and replace the shoreline protection which was nearing end of life (Shoreline Protection Blog Post). A hydro electric pole was installed, allowing for the electric powered boat lift to raise and lower, permanent security wifi cameras to be installed, Bell internet and in general more conveniences for charging batteries relating to boats and recreational vehicles. The dock, change house and open pavilion are also considered improvements to the property.
If I had any one of the above 5 items (not neglected or unused or had any buildings, structures or improvements) the property would not be considered “vacant” by the definition created by researching some sources below. Since I have them all I can confidently say our long-standing family property has never been a “vacant lot” for any period of it’s over half a century of family ownership. The cottage being there or not is only one factor alone and does not solely define our family lot being vacant.
Case law has long protected the continued enjoyment in the amenities of private land through the concept of legal non-conforming rights as it is known in Ontario, or as the Supreme Court has described it more generally, “the doctrine of acquired rights”.
There have been clear and unambiguous rulings 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 and at common law.
And, 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).
Vacant Lot Definitions:
Real Estate Agent - Edmonton, Alberta
Strictly speaking, a vacant lot (or empty lot) is a parcel of land that currently has no buildings (or improvements) on it.
Toronto Region Conservation Authority
Existing Vacant Lot of Record - A parcel or tract of land described in a deed or other legal document that is capable of being legally conveyed, containing no pre-existing buildings or structures.
City of Vaughan
“Vacant Lot” means a Property that does not have a building or structure.
Vacant Lot - a piece of land that is not being used.
Something which is meant to improve the value or usefulness of a lot can be called an appurtenance to the lot. Structures such as buildings, driveways, sidewalks, patios or other pavement, wells, septic systems, signs, and similar improvements which are considered permanently attached to the land in the lot are considered to be real property, usually part of the lot but often parts of a building, such as condominiums, are owned separately. Such structures owned by the lot owner(s), as well as easements which help the lot owners or users, can be considered appurtenances to the lot. A lot without such structures can be called a vacant lot, urban prairie, spare ground, an empty lot, or an unimproved or undeveloped lot.
What is a registered plan of subdivision?
A registered plan of subdivision is a legal document that shows:
- the exact surveyed boundaries and dimensions of lots on which houses or buildings are to be built
- the location, width and names of streets
- the sites of any schools or parks.
The plan does not show specific building locations; the rules for locating buildings are set out in the zoning bylaw and shown on plans as part of site plan approval. (See Guide No. 3, Zoning Bylaws)
The plan of subdivision must be:
- surveyed by an Ontario land surveyor
- in general conformity with the official plan and with any county, regional or district plan as well as provincial policies - approved by the proper authority
A registered plan of subdivision creates new, separate parcels of land and can be legally used for the sale of lots. It should not be confused with "compiled plans" or "reference plans" which are used simply to describe parcels of land.
OMB Hastings Drive Ruling 2018 (Paragraph 6) - for Lots 1 to 149 on Registered Plan 251 (dating from 1954) (“Subject Lands”) all on the western portion of Hastings Drive.