Trailers on Hastings - Legal prior to OMB Ruling?

February 4, 2019

With the recent Norfolk Today article published February 4, 2019 trailer use on Hastings Drive will once again be discussed at Council in the near future and hopefully have a quick resolution.  In the article, "Mayor Chopp believes these trailers that were sitting on the property before the ruling should stay as a legal non-conforming use just like the cottages on the land."

 

Our Hastings family property (est. 1947) and some other families have legally established many uses prior to 1985 when there was almost no restrictions on reasonable enjoyment of ones land use and continued them forward to present day.  Yet, times have obviously changed and I will focus this blog entry on the last 5 years and the question of trailer use being legal prior to the OMB Ruling.   

 

Better yet, I will let Senior Norfolk County Staff, OMB Ruling, Planning Act and Case Law answer this question as they already have on several documented occurrences.

 

March 18, 2015 -  Through official FOI requests, below is email correspondence between the Norfolk GM Development Chris Baird to the former Mayor, CAO, Councillors, Clerk, Manager Community Planning , Principal Planner, Chief Building Official and LPRCA General Manager regarding their current standpoint for "Trailers on Hastings Drive" at this time and answering the question from former Mayor Luke on "how the decision was made last year to allow trailers on Hastings Drive....Do you know who made that determination?"  

 

Chris Baird's Answer: "Following consultation with our Solicitor Peter Tice, it was determined that private “Parking” of vehicles on the owners land was a permitted use in the Hastings Hazard Lands.  Vehicles are defined as having, wheels, being licensed and being mobile.  This would include a motorcycle, car, truck or trailer meeting the noted requirements.  The zoning bylaw does not regulate time merely use.  Therefore any private property owner is permitted to park on their private property.  This occurs regularly and has included the parking of trailers on those subject lands.  Many would agree that leaving a “vehicle” on Hastings Drive throughout the off-season is likely not a wise decision however it is not illegal."

 

July 10, 2015 - County staff stumped by Hastings Drive issue - Simcoe Reformer Article

 

"I want our bylaw officers to begin enforcing our bylaws,” Luke said, adding he will seek a legal opinion on the matter if staff continues to sit on its hands.  Norfolk CAO Keith Robicheau and Pam Duesling, Norfolk's manager of community planning, countered that the way forward is murky.  Duesling cited Ontario case law which has determined that camping trailers are considered vehicles and not structures under the Ontario Building Code.  As such, Duesling says Norfolk's enforcement options may be limited.

 

July 10, 2014 - Tensions boiling over Hastings Drive - Simcoe Reformer Article

 

In an interview, Norfolk’s manager of development and cultural services, Chris Baird, said what owners of hazard land can and cannot do is “very grey.” However, he added that county staff are not ordering the removal of recreational

vehicles and trailers because they are not considered to be “structures.” They still have wheels and license plates and can be moved out at any time, he noted.  What is banned on hazard land, Baird explained, are commercially run

campgrounds.

 

July 8, 2014 -  Council Meeting Re: Hastings Drive - Road Follow Up - Report NO. P.W. 14-34 - Agenda & Minutes

 

Councillor Betty Changi question: “In the Report on page 507 or page 45(44), Development and Cultural (Services), stated that staff continue to agree interpretation and enforcement activities remain challenging, I would like to know why they remain challenging please?”

 

Chris Biard, GM Development & Cultural Services, Norfolk County answer: “Mr. Chairman perhaps I could answer that, part of the problem is the existing zoning in the Township of Norfolk Zoning Bylaw (1985) that continues to carry through into the new Comprehensive Zoning Bylaw (2014) that wording stays in place. And what makes it very difficult is the interpretation where it talks about ‘Parks’ and excluding ‘Tent and Trailer Parks’. We know that land owners do have inherent rights to use their property whether they are developed or not, and the uses are very vague. We know that we can’t, if the absence of having a cottage or structure we know that the policies as they stand don’t permit new construction. But, there’s nothing to say that those land owners can’t park their vehicles, as Mayor Travale had mentioned in an example, go park there for the day or overnight for that matter to enjoy the property that they legally own."

 

"And, so in consultation with our staff and our Solicitor we look at what constitutes a building or structure, and a vehicle with wheels and plates that is mobile is not deemed a structure. Where as the wheels come off and it gets blocked up and a deck is added, that’s when it becomes a structure. So the ability to move it on and off, we know, we recognize the public safety piece. We also know, we see both sides of the story and that makes it very difficult for an Officer to make a very clear determination."

 

"And in the absence of having a clear interpretation, if we charge someone we go to a court we stand on pretty loose grounds. We recognize the need, everyone in this room and everyone down there that are land owners or stakeholders, need to have some clear definition, just as much as this Council and Staff do. That’s sort of been the spirit of what we've been trying to do. It’s not that we’re coming out heavy handed, we’re trying to see how things are evolving, cause we all agree three years ago, we never heard anything about Hastings Drive and some of these issues have certainly come to a head. So clearly we need better policies and better response plans.”

 

Download Council Video:  https://spaces.hightail.com/receive/PGlDBATXtT

 

April 15th, 2014 - Council Meeting: Regarding 2014 Bylaw for Hastings - Agenda & Minutes

 

Councillor Roger Geysens question to staff: “Under this By-Law will people be able to park a vehicle on there, if we left it the way it was, are they allowed to park a vehicle on their lot or property, and under the provision you are suggesting, will they still be allowed to do that?"

 

Mary Elder, Principal Planner response: “I believe a person can park a vehicle on their property and they still would be able to.”

 

Download Council Video: https://spaces.hightail.com/receive/uDWNXHfg3j

 

December 12, 2017 - Council Meeting:  Attempt to regulate trailer use in all of Norfolk County - Agenda & Minutes

 

Norfolk Principal Planner, Shannon VanDalen responding to a deputation by Rick Luska a Long Point (Hazard Land) lot owner, asking about the current status of Recreational Vehicles in Long Point and all of Norfolk County: “there are no provisions that address the parking of recreational vehicles, so at this time they are kind of permitted carte blanche on any property within Norfolk County”.

 

Link to the exact point in Council Meeting: https://youtu.be/GitRlmlOsvA?t=16m15s

 

February 12, 2019 - Council Meeting Transcript & video link to exact point  https://youtu.be/FuZIfT_WwYM?t=1251

                                   -  Minutes & Agenda

 

Councillor Taylor: “Another question to Mr. Baird, I would like to know if you would like to have a chance to respond to the video we saw from 2014?  Don’t know if anymore context needs to be provided about the video, if you would like to say anything?

 

Chris Baird, GM: “Through the Mayor, nope, that’s fine, that’s the facts.”

 

Original Deputation Video Link presented to Council Feb 12, 2019: https://www.youtube.com/watch?v=c7PyDu3xIdk

Download video presentation & response:   https://spaces.hightail.com/space/LuUpPANnd9 

 

2014 NORFOLK COUNTY COMPREHENSIVE ZONING BY-LAW 

 

Report No. D.C.S 14-19 - Feb 18, 2014 - Council & Staff Review/Discussion of 2014 Draft Bylaw "IN CAMERA" with regards to Non Conforming Uses Section:  

 

An internal comment raised concerns about a potential conflict between related legislation and Court decisions and zoning provisions dealing with repairing or replacing non conforming uses (sec. 3.23.2 and 3.23.3).  In discussion with the County solicitor it was determined that these sections should be removed.  The basis for this decision is that any rights associated with legal non conforming uses flow from section 34 (9) of the Planning Act and no municipal by-law may limit or reinterpret these provisions.  Section 3.23.1 which essentially quotes Section 34 (9) will remain. 

 

Final 1-Z-2014  Norfolk County Zoning By-Law:  Passed July 15, 2014 - Yet appealed.

 

Definitions:  

 

 2.98 “NON-COMPLYING”  shall mean an existing lot , building  or structure that does not fulfil the requirements of either the specific Zone regulations or general provisions of this By-Law for the Zone in which the lot, building  or structure is located and the general provisions, but which complied to the applicable regulations and general provisions when the lot was created or the building or structure  was constructed.

 

2.99 “NON-CONFORMING”  shall mean a use of any lot , building , or structure , or portion thereof, which does not conform with the list of permitted uses of this By-Law for the Zone in which such existing lot , building  or structure  is located.

 

Non-Conforming & Non-Complying Uses:

 

 3.23 Non-Conforming Uses

 

 3.23.1 Nothing in this By-Law shall apply to prevent the use of any land, building  or structure  for any purpose prohibited by this By-Law if such land, building  or structure  was lawfully established and used for such purpose on the date of the passing of this By-Law, and provided that it continues to be used for that purpose.

 

3.23.2 Nothing in this By-Law shall prevent the strengthening or restoration of a nonconforming building  or structure  to a safe condition so long as the strengthening or restoration does not alter the height, area, size or volume of the building  or structure  or changes its use to other than a conforming use.

 

3.23.3 Nothing in this By-Law shall prevent a non-conforming building  or structure , which is partially or fully damaged or destroyed from being restored or reconstructed provided yard  depths, height, area, size or volume of the building or structure  as it existed at the time prior to the damage or destruction are maintained or compliance with regulations of the Zone in which the building or structure  is located is not further reduced.

 

3.24 Non-Complying

Nothing in this By-Law shall prevent a non-complying building  or structure  from being enlarged, extended, reconstructed, repaired, renovated or used provided that the enlargement, extension, reconstruction, repair or renovation does not further reduce the compliance of the building  or structure  with any provision of this By-Law.

 

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 and/or uses. 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; 

 

 

March 30, 2016 - Final MHBC Hastings Drive Zoning By-law Study Issues / Options Report

 

2.6.1   Non-Conforming   Uses   Similar  to  By-law  1-NO-85,  the  new  Zoning  By-law  contains  provisions  regarding  non-confirming  uses.  ‘Non-conforming’  is  defined  in  the  Zoning  By-law  to  mean,  “a  use  of  any  lot,  building,  or  structure, or portion thereof, which does not conform with the list of permitted uses in this By-law for the Zone in which such existing lot, building or structure is located”.

 

The  Zoning  By-law  defines  ‘existing’  as,  “legally  in  existence  from  the  date  of  the  passing  of  this  By-law”.

 

Section 3.24 provides the general provisions for non-conforming uses: Nothing  in  this  By-Law  shall  apply  to  prevent  the  use  of  any  land,  building or structure for any purpose prohibited by this By-Law if such land, building or structure was lawfully established and used for such purpose on the date of the passing of this By-Law, and provided that it continues to be used for that purpose.

 

April 22, 2016 -Re: Norfolk County Hastings Drive Zoning By-law Study Issues / Options Report & Final Recommendations -  Ministry of Municipal Affairs (MMAH) comments regarding the proposed Hastings Bylaw and the reference of legal non-conforming cottages should be outright removed from the Bylaw since this ultimately is determined by lawyers or courts.  So technically any cottage on Hastings Drive could be challenged on whether their cottage is legal non-conforming, and they would have to prove through pictures, building permits, previous owners statements, etc… that their cottage was built prior to 1985.   Planning staff can’t just do a biased blanket statement on cottages being Legal Non-Conforming in a Bylaw as the MMAH pointed out.   

 

The Ministry of Municipal Affairs and Housing (MMAH) has reviewed the above-noted report, as per the mandate of this Ministry with respect to provincial interests in land use planning and development. 

 

Section 2.1, Planning Act, on page 21 of the report states the following: “Although cottages are not currently a permitted use in the Zoning By-law, the cottages within the study area on Hastings Drive were built prior to the prohibition of the use. Therefore, these cottages are permitted to remain as ‘non-conforming’ buildings and structures and retain certain rights in accordance with the Planning Act and Zoning Bylaw.” 

 

This statement could be considered a legal interpretation respecting the status of existing cottages on Hastings Drive relative to the “non-conforming” provisions in the Planning Act, and the Zoning By-law. There are other references to the “non-conforming” status of cottages in the report. It is respectfully suggested that planning opinions respecting “non-conforming”, and “legal non-conforming” status be avoided in the final adopted report, since ultimately the determination of non-conforming status under the Planning Act would rest with lawyers and/or the courts. 

 

OMB Hastings Drive Ruling PL141006 - Force and effect on Ruling Date of April 16, 2018 and going forward

 

Paragraph [15] Legal Non-Conforming Uses - 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.

 

Erick Boyd (Ministry of Municipal Affairs Planner) Witness Statement Pg 31 -  Legal Non-Conforming Uses Can Continue:

 

207. The zoning by-law proposed by the County, Ministry and appellants would apply to new uses, and would not take away existing legal non-conforming uses under s.34(9) of the Planning Act. 

 

208. All four planning experts agree that the status of legal non-conforming uses on Hastings Drive is beyond the scope of the OMB hearing, and would need to be addressed on a site-by-site basis.

 

CASE LAW: 

 

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.  

 

THE EVOLUTION OF LEGAL NON-CONFORMING RIGHTS (2010)

 

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.

 

A new bylaw, amendment or policy change cannot improperly narrow or restrict the right of a property owners to a legal non-conforming use, contrary to section 34(9)(a) of the Planning Act.   Doing so is beyond the jurisdiction of a municipality.

 

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.  Click here, for more details on this topic of Legal Non-Conforming Uses Under the Planning Act (2006).

 

Summary:

 

1)  In the last 5+ years Norfolk Staff were very well aware that trailers had and were being used on Hastings Drive "regularly".

2)  Senior Staff consulted with the County Solicitor Peter Tice and determined the 1985 Bylaw in force and effect allowed for "vehicles on the owners land was a permitted use in the Hastings Hazard Lands. Vehicles are defined as having, wheels, being licensed and being mobile.  This would include a motorcycle, car, truck or trailer meeting the noted requirements."

3)  This interpretation was communicated very clearly to the former Mayor, Council, LPRCA and all Senior Planning Staff including the Chief Building Official, in that trailers on Hastings Drive "is not illegal".

4)  This interpretation was also clearly communicated to the public on multiple occasions (Several public meetings & Newspaper Interviews), many years prior to the OMB Ruling.

5)  No enforcement ever occurred on Hastings Drive regarding this well known trailer use.  

6)  OMB Bylaw on April 16, 2018 - "Nothing in the decision relates to any specific use that may be legal non-conforming."

7) Both the Planning Act and case law are very clear in municipalities inability to use new bylaws for stripping legally acquired uses.  Bylaws are not retroactive they are only forward looking. 

8) A municipality has discretion in enforcement of their bylaws

9) Legal Non-Conforming status is a private matter between a private landowner and the municipality and should not be allowed to be broadened. 

 

Conclusion:

 

Mayor Chopp's recent Hastings Trailer Legal Non-Conforming Motion (*revised Motion) has the ability to save the County a lot of future litigation costs, which were created without consideration of these Legal Non-Conforming rights and under the old administration (Norfolk Today Article).  The only way to remove legally established uses is for the County to expropriate the properties with compensation.   Also keep in mind, Legal Non-Conforming established uses can not be appealed by anyone, they are already established under a previous Bylaw and absolutely no studies are required.  If you're on Hastings hopefully you documented this trailer use prior to April 16, 2018, since it is on you to prove to the County your legal non-conforming rights.  

 

The County can't remove a legally established cottage now that 'no new development' is part of the OMB Ruling, so why would any other legally acquired uses established prior to the April 16, 2018 be required to be removed now?

 

Fair is fair.  

 

Force & Effect of 1-Z-2014 Bylaw on Hastings Drive

 

July 15, 2014 -  1-Z-2014 Bylaw is passed by Council Res. No. 32- Section 1.6.2 Repeal of By-Law 1-NO 85 and All Amendments:   By-Law 1-NO 85 (The Township of Norfolk Zoning By-Law) and all amendments thereto, passed pursuant to the Ontario Planning Act as amended, and which were approved by the Ontario Municipal Board, the Region of Haldimand-Norfolk or the Township of Norfolk, are hereby repealed except in so far as it affects the area known as Hastings Drive (South Walsingham, Plan 206, Lots 66 and 67 and South Walsingham, Plan 251, Lots 1 to 148). The Hazard Land Zone (HL) as set out in 1-NO 85 remains in effect.

 

Council also passed a Resolution No. 17 directing staff to include sufficient funds in the 2015  Capital  Budget  for  the purposes  of  retaining  consulting  services  to  assist  in  determining  future land uses on Hastings Drive.   

 

August 8, 2014 - Boyce’s Appeal of the 1-Z-2014 Bylaw Hastings Section 1.6.2. - Reason: The failure by the Council of the County of Norfolk to deal with the zoning for Hastings Drive has effectively created a land use planning vacuum for Hastings Drive.  

 

September 22, 2015 -  The Final Terms of Reference for the Hastings Study DCS 15-97 was approved by County Council on September 22, 2015.  

 

Pg. 5 of Final Terms: As appeals were received on the County Zoning By-law 1- Z-2014, and are not yet settled, the Township of Norfolk Zoning By-law 1-NO85 is currently in, force and effect and zones the Hastings Drive area "Hazard Land (HL) zone”. 

 

March 30, 2016 - MHBC Hastings Final Report - Norfolk County Hastings Drive Zoning By-Law Study.  

 

Existing buildings and structures (e.g. existing cottages, shoreline structures, accessory structures) that are lawfully established on the day the by-law is passed will continue to be permitted to be strengthened, restored or reconstructed in accordance with the non-conforming provisions of Zoning By-law 1-Z-2014 and any agency approvals/permits that may be required (e.g. Long Point Region Conservation Authority).

 

January 8 & 12, 2018 -  Lawyer Tom A. Richardson's OMB Opening & Closing Statements on Behalf of Jerome Party (Jerome, Body, Waite & Corke/Neely) -  Lawyer & Partner Sullivan Mahoney Law Firm

 

"There were a number of appeals to by-law 1-Z-2014, two of which have ultimately resulted in this hearing.  Consequently until these appeals are dealt with, the current zoning on Hastings Drive is the hazard land zoning of By-law 1 NO 85. One may ask why my clients are here, when they can, apparently, approach the county to request status as legal non-conforming uses.  They may still do that. But they react as any Canadian would, to any level of government taking from them what they understood they had, namely limited use of their lands."

 

February 13, 2018Agenda of Council Meeting Pg. 199-227 - Report CAO-18-09

CAO Statement:  The OMB Appeal of 1-Z-2014 - The above-noted section 1.6.2 of 1-Z-2014 is the subject of an OMB appeal wherein the hearing has ended but a decision has not yet been rendered. 

 

April 19, 2018 -  Hastings Drive OMB Decision Follow-up Memo to Mayor and Council from Fritz Enzlin and Pam Duesling  

 

"All existing structures on Hastings Drive that are subject to this appeal (example cottages and change houses) may be considered legal-non conforming uses so long as they were constructed or erected lawfully in compliance with the existing zoning at the time of erection and with all the required permits and approvals prior to April 16, 2018. Where a structure is demolished by an Act of God and the owner is able to demonstrate that the demolished structure was a legal nonconforming use it may be possible for the structure to be rebuilt upon the same footprint subject to all applicable regulations, permits and legislation."  

 

"The zoning change is in full force and effect as of April 16, 2018

 

"The existing Norfolk County Zoning By-law 1-Z-2014 will be updated to include the new zoning in May 2018. The update to the 1-Z-2014 By-Law does not impact upon the effective date of the decision, which remains April 16, 2018."

 

"A change house is currently not a defined term within the current Norfolk County Zoning Bylaw and will be proposed to Council in a future zoning by-law update report later in 2018 by Planning staff as previously deferred from 1-Z-2014 in early 2018"

 

"Day use is currently not a defined term within the current Norfolk County Zoning By-law and is interpreted by Norfolk County By-law Enforcement as being dawn to dusk."

 

"For clarity, recreational vehicles are prohibited at all times during the day and night and are defined in the Norfolk County Zoning By-law 1-Z-2014 as follows: "RECREATIONAl VEHICLE" shall mean a vehicle designed to provide temporary living, sleeping or eating accommodation for travel, vacation, seasonal camping or recreational use and designed to be driven, towed, transported or relocated from time to time whether or not the vehicle is jacked up or its running gear is removed. A recreational vehicle shall include a motor home, camper trailer, motorized home, motorized camper, truck camper, pick-up coach, chassis-mounted camper, slide-in camper, tent trailer, fifth-wheel trailer, park model trailer and similar mobile vehicles, watercraft, boats and marine craft, but excludes a mobile home."

 

May 17, 2018 -  Regular mail letter of notice to Landowners on Hastings Drive regarding the Local Planning Appeal Tribunal (formerly Ontario Municipal Board) Order and how it may affect your land on Hastings Drive.  Stating in the letter, "The Township of Norfolk Zoning By-Law 1-NO 85 has been rescinded and is no longer in effect. The Norfolk County Zoning By-Law 1-Z-2014 is now in effect for Hastings Drive." 

 

Summary of Bylaws:

 

Section 1.6.2 of the 1-Z-2014 Bylaw relating to Hastings Drive was specifically appealed by Boyce.  The appeal was not resolved until the OMB order on April 16, 2018 (almost 4 years after the appeal).  As shown in specifically the Hastings Study Terms of Reference, by Lawyer Tom Richardson and Norfolk County mailed letter of notice regarding the OMB ruling, the 1-NO-1985 Bylaw was still in full force and effect up until all appeals were resolved on the OMB Ruling date of April 16, 2018.   

 

If the creation or amendment of a zoning bylaw has been appealed to the Ontario Municipal Board, and the OMB has yet to rule on these appeals, the bylaw will only come into effect on the day the zoning changes (OMB Order) comes into force.  Any previous Bylaw is still in full force and effect until this OMB Ruling. 

 

Therefore the 1-Z-2014 Bylaw since appealed never took effect on Hastings Drive until the OMB Ruling (Bylaw 38-Z-2018) on April 16, 2018 and replacing the 1-No-1985 Bylaw.  Vehicles and trailers were a legally permitted use on Hastings Drive up until April 16, 2018 and if established prior to this date should be considered legal non-conforming going forward.   Both legally established structures and uses are recognizable in the Planning Act as having Legal Non-Conforming status.   

 

 

 

 

 

 

 

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Stephen Corke

I am the 3rd generation owner of Corke Point and

Long Point Ratepayers' Association Member

(647) 213-1026    

stephen@corkepoint.com

 

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