Regarding 7 Sources, the file “Makuch-reading-week-6” should be used as a source. The other 6 sources should be found in the link (specified Source) in the file “Assignment”.
Land Use Regulation
The traditional basis of planning, as indicated above, was that oflicial plans were to set overall policies and that those policies were to be imple- mented by other land use controls. The most ilJlPortant method of general implementation of plans was the zoning by-law, a process copied from Amer- ican legislation first enacted in 1922, the Slalldard Slate Zoning Ellablillg Act, I whereby the entire municipality was divided into districts or areas with uniform regulations or restrictions in each area. It is a system of ~and use control now common to all Canadian provinces.
The basic premise of this method of implementing a plan is that rational separation of conllicting uses is desirable and is one of the main goals of the planning process. Pure zoning emphasizes the distinctions between uses rather than any rdationship that ties them together. Indeed, its advocates years ago assumed that "landowners could be protected from the injurious effects of other land uses by dividing up the city - with houses here, busi- nesses over there, and industry somewhere else."l However, with cllanges in technology and the economy, such separation of uses may no longer be necessary, or indeed beneficial. Planning should encourage the combining of compatible uses, such that people can live where they work and play.
Zoning developed with the view that the local legislature was to establish rules to govern development into the distant future, perhaps 20 or 30 years. The legislation was to be designed so that development could OCCUlrwithout further state intervention either through amending by-laws or through the administrative discretion of ofticials. Development was to occur automati- cally along the lines of the zoning by-laws. The concept was stalic, rather than dynamic, land use control. The plan was drawn, the by-laws passed and, slowly but inevitably, the city would till out according to plan. The consoli- dations of loning by-laws for cities in Canada show that this ideal is far from dead. The zoning by-laws generally cover the entire city, selling out districts
I Reprinlc:d in A Modd umd Dew/opmell/ COtJe TellltJ/ive Draft No. J (Philadelphia. 1968) supra Chapler 7, notes SO and SI.
2 Dukeminier and Stapteton 'The Zoning Board of Adjuslment: A Case: Study in Misrule" (1961-62),50 Ky. LJ. 273 3t339.
CANADIAN MUNICIPAL AND PLANNING LA W
;~~~.rding to use and density in order to achieve the ends of the legally adopted
T~e theory of zoning closely ti.1110wsthe rule of la . . . to provide certainty and predictability by r .. d' w v~lue In thai U seeks set in advance for all to see and eve . ~~UIn~ Iscretl~n. The rules are to the same rules. ryone Wit In a given zomng area is subject
Traditionally zoning as a syst fl' . was not intended t~ control the det:~ ~f ih a~~lng Implementation in Canada Architectural quality was seen as be de. orm or nature of development. private market to deal with Zo' yon .us. purview; something for the conllicting uses by imposin~ pro~:~;' was :Imued to ~llem~ting to prevent seen to have its roots in the comm I 10~S. ~ u~d.ertaklng t.hls task, it Can be equitable doctrine of restrictive co~~n:n:s octn.ne ~f nUIsance and in the
:::~~~;~O:::a~~':~~~:"~:;'~~~::::'~I~::~:~:~a~~I~~h~U~:~ to Prospectively prevent the use of land Both aus~..lt all~mpts bY'pr~hibition nants have severe limitations as land u~e devi:~~s.an~~ an~ re~tncllve cove- seen as an allempt to remedy those limitations. an zoning m part can be
The tort of nuisance is found to ex' h interferes with the use and enjoyment of an~~~e~'Sel~ ~ ~r.s~n .u~rea~ona~ly ~etrospective in nature. Although there is th n .' .. ulsan~e ISp~lm~nly InJunction,4 the relief, usually in the form of d.e poSS~b~h~yof a qUia 1II~,el
~here ~as been a physical interference with the ::a;;:~~~ ~;:~d:t~ on 10~'.~rIntentIOnal torts or negligence the interferen' . . er. n I e be caused intentionall or ne ' . ce I.nquesllon does not have to that a nuisance exists Ythe co gurthgse~~ly.In~teadd. In deciding whether to find
. ' ••.•e require to make a d t . .
r;~~~n;e~:h~~~;h:' i~u~~~:~t~~s ~.s:~h~ g~avity. of the h:.;~~n~~~:c~;; of the plaintiff; the utility of the d:fe:~' IS,su~ate. ~~y abnormal ~I~sitivity nuisance has continued and whether th ant s con:~ct,. the length. 01 lime the the nuisance; and the effect of the nu~s::~son nngmg the actIOn came to affected.~ In makin such an . e on the value of the property of the landowner a:ainst the ~;~~s:~t~~ pethe~ou~s ~ust bal~nce ~he rights
rson causmg the mterference; a
3 See for example Walk M K' . er v. c IIl1wllllldllslries Lid. (194810 W
1'. McK/IIllu" I"dustries Ltd .• /194914 D.L.R. 719 O· " ..N. 537 (H.C); Walker .(Ont. CA.). affirmed (1951 J 3 D L R 577 (0 .. ( n1.H.C), vaned 1195013 D.L.R. 159
4 Th L . " . . " . . n1arlOP.C). e aUn qUia ((met" roughly Il'anslales 10 "because '. •• . . .
~revenl ~me likely fUlure injury. he fears. TIus remedy IS soughl 10 5 St. 101", s (City) v. ulke (2000), 19/ D.L.R. (4th) 616 (Nlld C A
nOle.1 . . .) OIl628; Walker. SUpl"{l
determination which involves a high degree of judicial discretion clue to the open-ended nature of the "unreasonableness" standard.
The determination of whether to grant an injunction or damages also involves considerable judicial discretion. For example, in the case of Bot/om v. Olllario Leaf Tobacco Co.,to the Court held that tobacco smoke and fumes coming from a factory saturating the plaintiff's clothing and fUllliture and causing him and his wife to become ill constituted a nuisance but that it could not be remedied by an injunction; only damages were given. The Court had to balance the injury to the plaintiff against the public good. In this case, the public good was the employment of some 200 people. Similarly, in MQluJrake Mallagemelll Consullallls LId. v. Torolllo Transil Commissioll/the owners and occupiers of an office building complained of noise and vibration from the operation of the Toronto subway system. The Court of Appeal emphasized the substantial weight that should be given to an essential public service that benefited thousands of members of the public. Although the Court of Appeal overturned the trial judge's finding of a nuisance, the Court also stated thai if there had been a nuisance, damages were the appropriate remedy when the safety and convenience of the public would be affected by an injunction.
The use of a broad and tlexible test for nuisance may be defended on the basis that actual harm can often only be determined with reference to a known context, but the facts that give rise to a nuisance claim may vary considerably and would be difficult to anticipate through rigid standards. However, as a basis for determining appropriate uses for land, nuisance has a number of shortcomings. Firstly, predictability is diminished as the courts weigh a number of competing factors, including the "public interest." The absence of objectively determinable standards and the retrospective nature of nuisance results in uncertainty, which in turn may discourage investments being made to improve land.
Secondly, the "public good," may not be adequately presented to the courts, since, in most cases, there are only two parties appearing. The need for employment may have to be balanced against the evils of smoke and pollution and the parties may not be able or prepared to bring forward that kind of evidence. The adjudicative process is not suited to collecting and evaluating this type of evidence. Moreover, because of the inherent require- mentto balance community objectives in a determination of a nuisance suit. courts are invariably involved in policy decisions, which in turn raises sep- aration of powers issues.
The public nature of nuisance is exemplified by the rules respecting public nuisance. Public nuisance is distinguished from private nuisance by having effects that impact the community as a whole. In such cases, only the Crown, as represented by the Allorney General has standing to bring an
6 (19351 O.R. 205. (193512 D.L.R. 699 (CA.). 7 (1993). 102 D.L.R. (4Ih) 12 (Ont. C.A.).
ac~ion.H!t is only where an ind.ividual plaimiff can show special damages, un.lqu~ Ir~m other .members ot ~he c~mm~nity, that they themselves may bnng a nUlsanc~ SUlloIn cases ot pubhc nUIsance, the ability to enforce and seek com~nsatlon for co,:"munity based property interference is actually removed lro~ the C?mmunlly and placed in the hands ofa provincial official. '. . The ~elen~e 01 statu.t~ry authority, which provides some protection from
I~abllll~ for nUl.s~nce. ~nslllg from activities undertaken by public hodies (Illcludlllg ~ulllclpahtles) and authorized by statute, can also be seen as a sta~emen.t 0/. the public imerest or public good, as it provides a defence to c1a~ms of.nul~ance arising out of such works; the rationale being that to allow c1al1TIsof nUlsan.ce f~~ activities carried out in accordance with a statutory mandate would I~ elfect deny the mandate.1I Although the majority of the Sup~e~e Court of Canada attempted to narrow the defence of statutory au- thor~ty III Tock.v. St. John's (City) Metropolitan Area Board, to the Court later co~lIrmed the Judgment of Sopinka J., upholding this traditional view of the defence.I•1 It sh.ould be noted that the standard that must be met for the defence to.apply .•s a hIgh one: the courts will not casually reach the conclusion that pnvate ngh~s are intended to be sacrificed for the common good. The defen- dant aU~honlY must show that there are no altemative ways to carry out the work: It on~y one method is practically teasible, it must be shown that it was practIcally Impossible to avoid the nuisance.12
.Zoning schemes are, in part, a legislative reaction to some of the short- ~omlllgs of re~ul.ating incompatible land uses through nuisance. Firslly, zon- I?g, ~y determllllllg the appropriale location for uses in advance, is proscrip- ~Ive III ~ature. Lan~owners have some assurance through zoning that IIlco,:"patlble us~s WIll not locate adjacent to their own use, creating greater cert.al.nly thatthel.r use of land will not be interfered with. In addition, because declslOn.s respecl1n~ the location of uses are made by municipal councils, the proce_ss ISdemocratIzed, allowing local communities to determine the relative ben~lIts. of economic. acti v~ty an~ freedom from loss of propen y amenilY. ZO~lIlg .ISnot a substitute lor nUIsance actions and, as a result, locating an ~CIIVI~yI~ a prope.r1y zoned area is not adefencetoanuisanceclaim. However, III welg~lIlg the lac tors to determine whether a nuisance exists, Ihe zoning status ot the land will be relevant to the character of the neighhour and the reasonable expectations of the plaintiff to be free from interlerence.
The regulation of land uses has also traditionally been accomplished through the rules respecting restrictive covenants. Her~ a land?wner could, upon the sale of a piece of property, include as part o/the asslglllment con- tractual provisions restricting how the purchaser may use the I~nd. S.uch a contractual arrangement may be desirable where the vendor retains adjacent lands and wants to ensure that the uses put to the sold land do riot interfere with the vendor's cominued enjoyment of his land. The restril:tions were enforceable against the purchaser as a matter of contract law . However, often the vendor would want the restrictions to apply to subsequent owners of the burdened property. As a mailer of contract law, because there was no privity. of contract between the owner of the benefiting lands and the new owner 01 the burdened land, the benefiting owner could not enforce the restriction. Similarly, the benefiting owner could nOl pass on the benelitto a new owner of the benefiting lands for the same reason.
Under the common law, the benelit could pass with the transfer of the benefiting lands where it was the intention of the original parties that the benefit could pass and the covenant "touched and concerned" the land. How-. ever the common law rules would not allow for a transfer of tile burden 01 the ~ovenant, as this was seen as an intolerable restriction on the free alien- ation of land. As a result under common law, if an owner wh()se land was subject to a restriction respecting use, (for example, to only use the lands for a single residential use), sold the lands, under common law, the new owner would be under no such restriction.
Tulk v. Moxhav.13 a decision made under the equitable jUTisdiction of the courts, changed this situation by enabling the burden on land to run un?er certain conditions. In this case, which has clear parallels to modem planmng considerations, there existed a covenant requiring the burdened owner to maintain certain lands as a park. Upon the sale of the lands, it was held that the purchaser, who had notice of the restriction, was bound by the covenan~, as the covenant created an equitable interest in the land. The law, as It currently stands, allows for a restrictive covenant to run with the land (that is, bind future owners) where it meets the following {;onditions:
I) the covenant must touch and concem the land; 1-1 2) the burdened lands and benefiting lands must be ascertainable on
the face of the instrument creating the covenant; 15 3) it was intended that the burden run with the lands;
8 See Cairns v. Canada Refining & Sme/iing Co. (1913),25 OW.R. 38",5 o.W.N."23 (H.~." reversed (1914). 26 O.W.R. 490, 6 O.W.N. 562 (C.A." for a discussion of Ihe dlflerenceb,:lwecn private and public nuisance. The court also poinled uUllhal an individual could s~e III respecl of a public nuisance only if he could show some grievance apart from Ihal ~ul1ered by the general communily.
9 Tock v. S,. Johll's (eily) MelropolilUlI Area Board 11989/2 S.C R II" 1 . 112'>5 10 Ibid. ,.. 0, a -.
II Ryall v. Vic'/()ria(Cily),11999/1 S.C.R.201. 12 Supra nOie9 al 1226.
13 (llI48), 2 Ph. 774, 4t E.R. It43 (Ch. Div.); see also Parkinsoll I'. Reid, 11966) S.CR. 162. 14 Gatbrailh v. Mada"'askll Club Lid., 119611S.C.R. 639, 29 D.L.R. (2d) 153. See also R. v.
Yurk (TO""lShip), 11960) O.R. 238,23 D.L.R. (2d) 465 (CA.); Kirk v. Distacvm Velllllres JIIC (1996), 11996/ B.C.J. No. 1879, 1996 CarswcllBC 1878 (CA.).
t5 See umdoll Cou",,)' Cuulldl v. Allen, 1191"1 3 K.B. 642 (CA.).
194 CANADIAN MUNICIPAL AND PLANNING LA W
4) the covenant must he negative in nature, which is to say that it cannot require the owner of the burdened land to take some artir- mative step or spend money to comply with its terms;
5) the purchaser must have prior notice of the covenant. I/>
the view that land should not be unduly encumbered. The restrictions must be negative, which involves examining whether money will have to be ex- pended or court supervision needed. In addition, case law sugges s that the restrictions must be precise and not variable11 and they must relate 10 the use, not the users, of the land.2J
In many ways, restrictive covenams are similar to zoning. Indeed, one ofthe purposes of enforcing such covenants as set out in Tulk,24 was to protect the value of property and to prevent unjust enrichment. The Court in that case stated that the covenant should be enforced or else "it would he impossible for an owner of land to sell part of it without incurring the risk of rendering what he retains worthless ..." and that "the price lof the land Iwould he affected by the covenant, and nothing could be more inequitable than that the original purchaser should be able to sell the property the next day for a greater price, in consideration of the assignee being allowed to escape from tile liability which he had himself undertaken ... "2~
Zoning can be seen in part as a protective device to prevent the use of land in a way that will decrease the value of neighhouring lands, shih part of the cost of undesirable uses to unwilling neighbours and thus unjustly enrich the undesirable user. More importantly, zoning functions traditionally in the same way as restrictive covenants by placing negative restrictions on the use of land to prevent undesirable uses. Also, zoning restrictions must relate to the use and not the user of property.211
Traditional zoning, however, is an improvement on restrictive cove- nants. First, as seen earlier, it allempts to deal with land uses on a b.-oad scale, although it can also be site specific. The entire municipality may, and usually does, come under its regulation. This is an important difference from restric- tive covenams which aftect two parcels of land or building schemes which require common ownership. Zoning, therefore, is seen as a major improve- ment in that it is comprehensive in scale and unaffected hy land ownership. The technical requirements of ascertainable land, of benelits and burdens and lack of notice are totally removed, although others, as will be discussed, remain. Zoning can, therefore, be useful in implementing comprehensive rational planning.
A second improvement over restrictive covenants can be seen in zon- ing's public nature. Since it is legislatively imposed, usually at the municipal level,v it divorces land use control decisions from private ownership, and
. ~ variation on restrictive covenants in common usage today is the "huJl?JIlg scheme" which involves a number of lots rather than just two. A buJldmg .scheme exists when restrictive covenants are imposed during the course ot development, with the imention that once the scheme has "crystal- lized" on the. sale of the firs~ lot, the vendor will be bound, and subsequent purchas~rs WIll be able to enlorce the restrictionsY The purpose of a bui Iding scheme ISto ensure that landowners within a development area maintain their residence. in a si~i1~r architectural style or maintain a certain level of upkeep. In order tor a bUlldmg scheme to be in place, there inust be: (I) a common ~endor from which the plaintiff and defendant derive title; (2) prior to the ftrst .sa~e, the v~ndor had a scheme in mind that the lots would be subject to re.stnctlOns whIch, though varied in detail as to particular lots, are consistent wllh the general scheme of development; (3) the restrictions are intended to ?e for the benefit of all the lots sold, whether or not the restrictions are also IOtended to .be.f~r the benefit of other land retained by the vendor; and (4) both the plalOlIff and defendant, or their predecessors in title, purchased the lots based upon the assumption that the restrictions were to enure for the benefit of t.he other lots included in the general scheme, whether or nOI they were also IOtended to enure for the benefit of other lands retained hy the ven.dor.'~ In Ontario, it has also heen held that a huilding scheme must be registered pursuant to s. 119 of the Lalld Titles Act. IY Finally it should be nOl~d that the re.mo~~1 of restrictive covenants even after the expiration of theIr usefulness IS dllficult. The case law has indicated that they should not be re,moved unless the condition or restriction is "spent or so unsuitable as to be 01 no value and under circumstances when its assertion would be clearly vexatious. "10
Yet, despite the beneficial uses to which restrictive covenants can he ~ut: the device of ~ol~trolling land uses through restricti ve covenants is a very It.mIl.ed?ne. RestfIctlve c~>ve,nants are to be strictly construed, and any am- blguIly IS to be resolved III favour of non-enforcementl' _ in keeping with
16 For a general diS4:ussion, s<:e Bruce ZilT, 11,,:, Principles of Prupeny UIW, 2d cd., (Torolllu: Carswell, 1996) al 351-58.
17 Berry v. Indian Park AsslI. (1999), 174 D.L.R. (4th) 511 (Onl. C.A.). 18 Ibid. at519. 19 Ibid. RS.O. 1990 c. L.5.
20 See Beardmore. H~. 119351 O.R. 526, 11935J 4 D.L.R. 562 (C.A.). al 569 (D.L.R.I. For another exam pit: 01 an unsuccessful applicalion 10 n:move a restrictiun eve:n lhough Ihe proposed us<: was re:asonable, see Beardsley's App!icmiulI, He (19731, 25 P. & C.R 213 (Eng. Land Trib.). . .
21 Kirk. sup/'{/ note 14.
22 See SekwUI' I'. Turoll/U (Cily), 11973) 2 O.R. 161,33 D.L.R. (3d) 257 (C.A.). 23 Sa Galbrailh sUIJra nOIe: 14. 24 Supra nOle: 13. 25 Ibid. al 777-'6 (Ph.), 11+t (E.R.). 26 Sa H. I'. Be/ll197912 S.C.R. 212. (19791, 9 M.P.L.R. 103,26 N.R. 457, 9~ D.L.R. (3d)
255 (S.CCI. re:versing (1977) 2 M.P.L.R. 39. 15 O.R. (2dl425, 75 D.L.R (3d) 755 (CA.). re:versing (1976) 12 O.R. (2d) 487.69 D.L.R. (3d) 375 (Div. c..l.
27 In Om aria. howevcr.lhe:re is a provincial powe:r 10 zone:. See the: Planning Aa. R.S.O. 1990 c. P.l3. s. 47.
focused on the r~gulation of the physical impacts of land uses on surrounding lands. However, unlike nuisance, where actual interference with another's enjoyment of property is required to sustain a claim, zoning distillction~ are made on the basis of potential and predicted impacts. On~ strength of the Euclid decision is that the court tums its mind to whether the und~rlying assumptions respecting impact are valid. The approach is functional not formalistic.
In the Canadian context, zoning d~s not have the same constitutional dimension, but the regulation of the physical impacts of land uses remains the touchstone of valid zoning regulation. While the validity of a zoning enactment should not tum on whether there is an actual impact, the extent to which the courts are willing to go behind the wording of the enactm~nt, to assess whether there is a rational connection between the restriction and the prevention of some undesirable impact, has clearly inlluenced the court's interpretation of the zoning by-law and its validity.
The manner by which courts assess zoning regulation and its impact on judicial outcomes is exemplified in the cases of No v. Brown Camps LI.d.,l\ and Barrie (CiIY) v. Brow" Camps Residelllial & Day Schools,l2 both deCIded ny the Ontario Court of Appeal within several years of one another. In the first Brow" CampsH case, Brown Camps Ltd., a company that ()wned and operated group homes for children in the care of Children's Aid, was charged with using a premisis as a commercial house for the treatment of children contrary to the municipal by-law which designated the premisis for use as a single family detached dwelling. The by-law defined "family" as one or more persons living as a housekeeping unit and provided that a house could be occupied only by a housekeeping unit. The defendant argued thai the group of four children and the staff members caring for them constituted a house- keeping unit but the Court disagreed. It held that this group was not a family as it was composed of staff and "inmates" (the Court's term), the lalter of whom were passive in their placement and there at the whim of the defendant. There was no special relationship betw~en them and they did not agree to live there. The Court reasoned that personal election was necessary to estab- lish a housekeeping unit. Ultimately, the Court focused on th~ commercial natur~ of Brown Camps and characterized the use as a commercial one.
In the second Brow" Camps34 case, a house was occupied in the same way and the municipality argued that the use was for the nusi~ess of.carrying on a nursing home or medical clinic and not a family dwelltng UI1lt. Under the ny-law in this case, the area was d~signated for one-family detach~d dwelling units and dwelling unit was defined as separate living quarters for an individual or one family. "Family" was further delined as one or more
enables all interest groups in the political arena to have the potential of affecting land uses. Decisions r~specting land uses are made, and benefits and burdens (in the sense of increased and decreased values of property) are distributed as under restrictive covenants, but the community can inlluence the distribulion of those benelils and burdens. In keeping wilh its public nature, enforcement is undertaken by the state. Thus the burden of enforcing restrictions is not only removed from the individual but it is no longer re- stricted to the property owner. Zoning in this way has revolutionized land ownership and control. It has democratized the nuisance doctrine by trans- ferring determinations from the courts to local legislatures and it has democ- ratized restrictive covenants ny enabling society to impose restrictions re- gardless of land ownership, although it is clear that restrictive covenants are still available for private landowners and will prevail even in the face of zoning by-laws. They are, therefore, still an important private method ofland use control.
While signilicant improvements over the regulation of land use have been realized through zoning, the municipal power to regulate land uses through zoning is not unqualified. As a species of municipal ny-law, zoning regulations are sunject to the same limitations respecting the general exercise of municipal power discussed above. A central determinant of the scope of the zoning power as conceived by the courts has been the court's understand- ing of the purpose of zoning.
The purpose of zoning regulation was examined by Ihe U.S. Supreme Court in Village of Euclid v. Ambler ReallY CO.,2Ka case which upheld the constitutionality of a zoning ny-law dividing the municipality into different use and density districts against an allack which argued that the by-law depri ved the respondents of property without due process of law and depri ved them of equal protection under the law. The Court draws an explicit parallel between the law of nuisance and zoning provisions, noting that as American society has urbanized there is a greater ne~d for laws respecting the use and occupation of private lands, and, like nuisance, the assessment of whether zoning constitutes an unreasonable interference with privale property is de- pendent upon the circumstances and conditions presenl.N In holding that the zoning power was a justified exercise of the state's regulatory authority (referred to as the "police power"), the court concluded that the zoning regulation had a rational relationship to punlic health, safety and general welfare objectives.3U In discussing how zoning achieved these ends the Court
2~ 272 U.S. 365 (S.c., 1926). 29 Ibid. al 387. 30 Ibid. al 395.
3t 1196l)120.R.~61 (C.A.). 32 (1973),2 O.R. (2d) 337 (e.A.), leave 10 appeal refused (1974).2 O.R. (2d) 337n (S.c.c.). 3J S,,/lfl, 1I0le 31. 34 See supra nOle 32.
I 9~ CANADIAN MUNICIPAL AND PLANNING LA W
persons inter-related by bonds of consanguinity, marriage or legal adoption, o~ not more than five. un~elated persons. Here, however, the Coun of Appeal, viewed the use as belll~ III es.sence of a residential character, looking at how the propeny was used: IIlclu~lIlg t.he physical characteristics of the propeny.l5 . From a su~stantlve POlllt of view, the second case is clearly the more Ju.st outc~me, with the C~un appearing to be more sensitive to the objectives of the defendant to provide some semblance of family life to children under state care an~ supervision. While the first BroWfI Camps case purpons to be concerned with the commercial nature of the use, it never examines whether an~ of t.he externalities that one might associate with commercial uses in resl~entlal are~s, such as increased traffic, disturbances to neighbours, and ~he lIke, were III fact present or even likely to OCCur.The second case is an Impro~ement in the sense that the Coun was alive to the relevance of the actual Impacts of th~ use, noting at one point that the propenies in question have the same phYSical characteristics, internal and exteroal of a residential hom~:. Th~ mo.st satisfyin~ re~ons ~ctually come from the trial judge who explIcitly conSiders the objectives of separating residential from commercial uses:
Ican '~nd in the e~idence no serious inconvenience or detriment to Ihe neigh- bours, and Iam qUJle u.nahle to ~onclude thaI the character of the zone is being changed, or that the Objective 01 the by-law is being frustrated.
people zoning"37 is not sufficiently elaborated on. The Supreme Court ?f Canada, in support of its decision, only notes the effect of the by-law III precluding the sharing of rented accommodation by two .adult pers()ns unre- lated by blood or marriage. College students were ~entloned as olUe ?I the. "endless" examples that led the Court to the conclUSIOn that the regu latlOn 01 families could not have been within the contemplation of the provincial legislature when it empowered municipalities to pass zoning by-laws. No attempt is made to assess the purpose of restricting the allowable use to families or a minimum of unrelated persons.
A better approach in all cases, it would seem, would be to consider the purpose of the Planning Act and zoning, a~d to interpret the by-Ia.w and the scope of the zoning power in the context 01 that purpose. The zonlllg power is intended to prevent nuisance and physical interference with land alld ensure that uses are physically compatible. In order to accomplish this, the Ont~rio legislature granted authority in the Planfling Act3g to regulate througl1 zOlllng such matters as uses, densities, servicing and frontages on highways. At a minimum the couns should look at the zoning power in that cOlltext and relate their interpretation to those kinds of zoning and planning cllnsidera- tions. Such an approach is consistent with the Supreme Court of Canada's decision in OllQIIIQ (City) v. Royal Trust CO.,3~ where Mr. Justice Judson examined whether there' was a rational basis for the enactment of a by-law respecting levies on new buildings for increased burden o.n se~ers._ He con- cluded that the categories established by the by-law 01 reSidential, non- residential and combined residential and non-residential buildings were "nat- ural and s~nsible" given the statute. This approach would also be consistent with the more recent jurisprudence of the Court requiring "that statutes be construed purposively in their entire context and in light of the scheme of the Act as a whole with a view to ascenaining the legislature's true intenl."4o
The Coun of Appeal came closest to this approach noting that "the limitation of the use to 'families', as defined, may be based on such things as school, traffic, sewer or water requirements, or on a host of other needs, problems and concerns within the responsibility ()ft~e mU~icipality."41 H?w- ever, even here there is no analysis whether such a limitation could pOSSibly impacllhe provision of services. Had they done so, one may expect that such evidence would he difficult to find.
Blind adherence to the user versus use distinction should be avoided, for surely lhe distinction itself is a functional one. Zoning with reterence to
. In. neither 0.1' the Br~wll Camps cases was the validity of the by-law ca~l~d 1Il~0quest.lOn. But III R. v. Bel/,j(, a case with similar ovenones, the abilIty 01 a mUlllcip.ality to favour families over other living arrangements ~as pu.~~qu~r~~y be/ore t~e c.oun. Here,_the by-law restricted the premises to slllgie fam~ly use an.d .famlly was defined as Iwo or more persons related by h~nds 01 consangulllllY, marriage, or legal adoption, non-paying guests an~ servants, t~e owner and two other persons and not more than three foster children: In. thiS case, the house was occupied hy three unrelated persons ~none 01 w.hlch ~ere the owner), and on the face of the by-law were in clear cont~a~~ntlon of Its terms. The Supreme Coun of Canada, in holding that the prohibitIOn. was not a valid one, found that the hy-Iaw, in restricling occu- ~~?cy to "Iamlly," was "not regulating the use of the building but who used It. The Supreme Court also quoted with approval from a lowercoun decision th~t ~tated that ~rsonal qualifications of this type or other personal charac- tens~lcs or qualIties were not a proper basis for the control of density or for any Issue relevant to land use or land zoning.
Lik.e the second Browfl Camps case, the result reached by the Supreme ~ourt of Canada appears sound enough, but the reasoning hehind the result IS obscure because the coun adoption of the invalidity of "land zoning by
37 The phrase is from the Court of Appeal d.:cision (1977),2 M.P.L.R. 39 (Ont. C.A.), quoted ibid. al 112.
38 R.S.O. 1990c. P.13. 39 119641S.C.R. 526, 45 D.L.R. (2d) 220. 40 NlIIUlimo (ei/v) v. Rascal Trucking Lid. 12(00) I S.C.R. 342, (2000), 9 M,P.L.R. (3d) I
(S.C .c.) at t 2'; see Chapter 4, D (3) for general discussion. 41 (1977),2 M.P.L.R. 39, 15 O.R. (2d) 425,75 D.L.R. (3d) 755 (C.A.), at 47 [M.P.L.R.), 432
10.R.1 and 763ID.L.R.I.
35 Ibid. at 343. 36 See !il/pra nOle 26.
t~e use~ will in many instances be improper because the personal qualifica- tIOns of a user are unlikely to impact on the types of mallers zoning is intended to control. Gi ven the historic use of restricti ve covenants to bar certain racial and ethnic ~rou~s .fro~ communities,~2 the Courts should be rightfully scep- tical of Z~IlI~lgdlstJllctlOns that appear to discriminate on the basis of personal charactenstlcs. However, a ri.gi~ distinction between use and user is perhaps unw~rranted. For example, II IS not uncommon for developers to market housJllg s.chemes at retirees, such schemes would likely not generate the same deman~ for ~c~~ols and parks (or at least certain kinds of parks) as a regular plan 01 subdiVISion. They may even generate lower demands on services due to lower average household size. Zoning by-laws that make such distinctions are rationally connected to the purposes of zoning.
T~e C?U~S i~ these cases, as mentioned earlier, are rightly concerned a~out dlSCnmJll~lIon against various groups in society that might be adversely affected by zOlllng by-laws. In trying to prevent this from happening the Supreme Court of Canada has inhibited municipalities from zoning with respect to the users of property. The result is that a substantial limitation may have ~een. p~ace~ on ~nunicipal zoning powers without any guarantee that such dlscnmln~tlOn will not ~cur. Clearly, municipalities can discourage or encourage family uses by zolllng with respect to unit size both in terms of floor space and number of rooms per unit. The establishment of minimum lo.t sizes, fr~ntag~s and unit. sizes can severely discriminate against the poor without zonJllg directly agaJllstthe users of property. There is a need for the courts to be much clearer about the purposes for which zoning can be used and about what constitutes discrimination in zoning. While later cases have tri.ed to circumv~nt the d~ision in Bell, none provide a satisfactory analysis ?f the purpose 01 the zonmg by-law, resulting in the unpredictability zoning IS meant to remedy. ~J
While it ~seasy. to. argue that aesthetic zoning to protect streetscapes, to ensure attr~ctlve. bUlldl.ngs or to prevent shadows should be upheld in the absence 01 speCific reference to such matters in legislation because such matters relate to physical use of land and thus are closely related to nuisance and s~fety concerns, ~he zoning of land for social welfare purposes is another question. The regulatIOn of land uses for the building of low income housing,
for example, could easily be struck down on the user, as opposed to use, principle although, as indicated above, that distinction is inappropriate. A similar fate would befall by-laws zoning land for senior citizen housing and municipal legislation designed to make those homes more acceptable to the community.~ In the absence of the user-use distinction, can it be argued that social welfare mallers are an appropriate subject for zoning? Certainly most planning acts, as indicated carlier, in setting out the parameters of planning, include references relating to social and economic matters of a general nature. However, zoning provisions are generally related to the physical use of land.
In the absence of taking an approach that looks at the purpose of the legislation and the relationship of zoning with that purpose, the courts are interkring with the policy decisions of municipal govemments on lhe basis of their own views. There are of course important areas where courts should interfere to prevent real discrimination - in cases where zoning does not relate to proper planning purposes or where, although it does relate to plan- ning, it so substantially interferes or potentially interferes with the interests of minorities that it should be struck down. Where this is the case the courts should clearly state their reasons and indicate to all the reason for the inter- ference. To give guidance to municipal decision-makers, the courts should face directly the issue of how broad the zoning power will be.
There may be increased willingness by the courts to allow "user" zoning since the advent of lhe CJwrler.~5Where zoning is perceived as ameliorating the situation of the disadvantaged, for example, zoning requirements that include age or health requirements, then it may be allowed.~6 Both the Charier and the provincial human rights codes allow this type of "aflirmative action" discrimination, and zoning to advance the cause will be allowed as long as it fits within the definitions in the Charier and the codes. The Charleruoes not, however, change the zoning powers with respect to zoning at "undesirable" users, and this still cannot be done.
The application of the general prohibition against discrimination to zoning by-laws also warrants special allention. Unlike the above discussion, we are speaking here of discrimination in the generic, non-pejorative sense -the prohibition against making unauthorized regulatory distinctions. Zoning is centrally concerned with making distinctions, as the very crealion of a particular zone which restricts uses differentiates bet ween landowners - those within the zone and those outside of it - at the discretion of council. On a
42 See for exampk Wren. He. It945J O.R. 778, 11945J4 D.L.R. 674 (H.C). where a covenanl pn:c1udmg ··Jews or pcrsons of objectionable nalionalily" was found void on public policy grounds.
43 Since R. II. Bell, the couns have considered zoning in relaliolllO families on several occasiolls mcludmg: Smilh II. Tilly (TOI.."sllip) (1980), 107 D.L.R. Od) 483 (Dill. H.C). affinned (~~80), 114 D.L.R. (3d) 192 (Onl. C.A.), lcaY!:to appcal refused (1980). 114 D.L.R. Od) 19_ (llole) (S.c.c.); Fall/IIIUII' I'. Nurth Vall("Uuller(Dislricl) (1988).61 D.L.R (4Ih) 747 (B.C. C.A.); and Canll/ure Pruperty Mallagemenl Ille. v. Call1llUre(Tull'lI) (2000),120001 AJ. No. 1117, 2(XXlCarswellAha 1066 (Q.B.), all of which upheld Ihe dislillclion. BUI5Ce Brelldull v. ClubLillk Properties Ltd. (2001 ),12001 J OJ. No. 3904. 2001 CarswdlOIlI.U20 (S.CJ.).
44 See Turoll/u (Cily) By-ww -113-78. Re (1979), 9 M.P.L.R. 117, 100.M.B.R. 38 (M.B.). where a zoning by-law pcrmitting a senior citizens residence was struck down as being ··pcople zoning" or zoning as 10 ··user."
45 Schedule B to the CUlwda ACI 1982 (U.K.) 1982. c. II. 46 GOlh I', Oakville (TuWII) (1996).32 O.M.B.R. 388 (M.B.).
202 CANADIAN MUNICIPAL AND PLANNING LA W
broa.d ?asis, Ihe crealion of such dislincliol . . _ . . bUI II IS less clear whelher Council has Ih1 I~ c1ear!y aUlhonzed by slalule, individual, parcel-by-parcel basis a . ~ aUlho~IY 10 zone lands on an zoning. ' process somelJmes referred to as spot
In the early case of Toroll/o (C by-law which provided that no lu ~~V) .v. Ma/ldelbaum,47 lhe <?ily passed a be established in any place Wilhi ~h r~~r<J:.wood yard, or. planmg mill shall obtained from the commiuee n e Jly ~nless a permJllherefore is first city council before being issu~~.£~~~~Yb s~ld permil 10 be approved by the because of the provisions respeclin th y .aw ~as found to be ultra vires made the by-law not one of ener: e pe~1I whIch, a.cco~ding 10rhe Coun, which was discriminalory in ~IS a 1/~g~lallOn or app"call~n. but ralher one the power 10 regulale il can as~P l~atlOn. When Ihe munlclpalily is given criminme by giving ~rmi' . p on Y general regulallOns and cannol dis-
Thi.s argumenl was c~~~~~~e~~: ~:s~~ ,and .refus.ing illo another.4' v. BOlldl/u where a municipality d se ~f SCQlborough (TolVllship) properly owner in order 10 prevelll ~~~~~e on~ plec~ of land owned by one provisions of the zoning by-law r . ~ner. from clrcumvenling Ihe general comer 101.Mr. Juslice Judson u he:{:~~~ng fr~llIage because his land was a one parcel In his view Ih . P by-law although II relalcd 10 only the respondenl 10 fall i~ W~I~n:~1lIand ~fT~1 of lhe by-law was "10 compel Far from being d' .' . e general slandards of lhe neighbourhood "
IscnmmalOry lhe amending b I . to enforce conformily wilh Ih: sla d d . y- aw Was seen as an allempl J d . n ar s ot Ihe original by I' M .u son, however weill on 10 deal 'th - aw. r. Jusllce Ihe view Ihal a m~nicipalilY cannolwd~ I.he.definilion of discriminalion and
d ,.. . Iscnmlllale by giving • . .an re uSIng II 10 anolher. Of Ihis, he said: pcnnlsslOn 10one
I...doubt '" whether it I:an ever afford a ui . . . . lOlling by-law. The mere delimitation of I~ de In de~lJng.with a reslril:live or s.ul:ha by-law involves an element Ofdisl:rin~t:u.ndafles 01 the area affel:ted by hne an owner may be prevent~.1I' d' atlOn.On one Sideof an arbitrary
<;U rom OIngsometh' . h h' another owner, on the other side ol'th I' . h IIlg wit IS property whkh . . II e lIle, wit a property h"hIIIa respel:ts eXl:eptlocation '. f' d w IC corresponds
,IS ree to o.... ~I
. I~ lhe case of NOr/h York (TolVlIshi ) He ~2 h .' of zonmg indi vidual 101s' "S '11. P • , I e Coun dealt wllh Ihe issue
. ma areas may be d and facts as 10 their ownersh' . . zone as well as large ones consideration is being given 10:~ or (;Q~trol ~hould have no bearing when
e quesllon of whelher or not the area sought
47 1/932) O.R. 552. f 11J32/3 D.L.R. 604 (S C ) 48 11(32) 3 D.L.R. 604 (Onl. S.c.) al 605 .. " 49 Here the coun relies on F T 50 11959/ S.C.R. 444, 18 D.~~t;id)u;:~ltu(Ci~v) (1923).54 O.L.R. 256 (C.A.). 5/ Ibid. al 166lD.L.R.I. . 52 /1960/ O.R. 374, 24 D.L.R. (2d) 12 (CA.).
10 be zoned complies with lhe general purpose and inlent of lhe legislation."~3 The couns in the BOlldi and Nor/II York cases were willing 10 allow zoning on a case-by-case, 101-by-lot basis if il were done by the passing of a by-law. Spol zoning, 10 lhe Canadian couns, is nol an evil. The parcel of land zoned can be any size. What is imponanl is Ihal lhere exiSIS a credible planning ralionale for lhe dislinclion. A fael which dislinguishes lhe MetldelbLlllm case because lhe decision to issue a pemlit was entirely discretionary.
This approach of overruling municipal action on the basis of <Jiscrimi- nalion only where a by-law leaves room for funher municipal reslrielions or where no actual by-law is passed can be juslified on Ihe basis lhallhe passing of by-laws is generally conI rolled by municipal plans and thus the exercise of municipal discrelion is Slill slructured by the plan.~ The passing of a resolution or requiring some additional permit may nOi be so conlrolled.
Conversely, lhe mere passing of a zoning by-law for a large area is not sufficienllo avoid the problem of subslantive discriminalion.ln H.G. WitllOtI LJd. v. NOr/II York (Borough) ..~~the applicanls agreed to sell properly 10 the Zoroastrian Sociely of Ontario. The land was zoned residenlial at the lime of the agreement and lhe building commissioner confirmed in wrilin,g thaI the use of Ihe propeny as a lemple was permitled under the by-law. Within one week of the signing of lhe agreemenl, lhe municipalily re-zoned Ihe properlY and Ihe surrounding area 10 prohibil church uses. The zoning by-law was passed wilhoul any malerials or sludies from the Planning Board; preparalion of such sludies was lhc usual praclice in considering passage of a zoning by- law.
The Coun in thc case Slaled lhallhe allemptto show Ihalthe zoning was of a widcr area than one propeny was unlenable. II found Ihal the "council was nol concemed about or inlerested in rezoning any properly olhcr Ihan lhc applicanl's." The Coun funher concluded lhallhe by-law was discrimi- natory. However, thaI conclusion was nol on the grounds of the zoning of one propeny bUl on the grounds lhat Ihe by-law lacked any discemable planning ralionale. The Courl staled:
... there must be proper planning grounds or standards to warrant discriminatory distinctions between property owners in the same position, dassitication or zoning category. Here, no planning purpose has been shown toexplain,letalone justify, the selel:tion of a single spot in the borough as the subject of lhis amendatory zoning by-law. There is no rhyme nor reason, in a plallning sense, for il.~
53 (1960),24 D.L.R. (2d) t2 (Onl. C.A.) al para. 20. 5.• See the Plallllillg Aa, R.S.O. t990 e. P.13, ss. J4( II) ami (19), whieh provioks forO.M.B.
review of by-laws only upon appeal by any person induding the Minisler or an agency. 55 (19711),6 M.P.L.R. 1,20 O.R. (2d) 737.88 D.L.R. (3d) 733 (Div. CI.). See also Rumall
Cmholic Episcopal Cor/}. for Ille f)iv(:ese of Toromo ill Camula I'. Barrie (City) (1997), (199710.1. No. 2536.1997 CarswdlOnt 2261 (Gen. Div.).
56 Ibid. al 12IM.P.L.R.I.
,. In the case of P~/ro-Culluda v. Norllt Vallcouver( Dislricl),H the District pas~ed a, by-law whIch a.mended an existing zoning by-law by dividing gas stat:~ns ~nto two.catego~les: "gasoline bars" and "gasoline service stations." A g~s~lIne servIce station was required to include a service bay for the servlctng ~nd repai~ of vehic~es; a gasoline bar may contain a service hay. Both re~ulred s~r_vlce ~t .a "lull service pump" in addition to self service pumps tor a s~clfted ~llImmum number of hours per day, The hy-law divided' the co.mmerclal zone tnto two zones, with gasoline bars which did not have a ,servIce b.ay ~nly permilled in one ?f the zones. The B.C. Court of Appeal stated ~hat zomn.g by-.la~s are by theIr very nature inherently discriminatory. :rhey are only I~vahd If they are unreasonably discriminatory. Here the amendm~nt ~ppl~ed equally ~o ~II ~asoline stations in each zone, apart from t~e non-conlormtn~ stalU~ 01 e~lsttng stations. The stated reasons for the hy- l~w wer~ the retentton ot service bays for repairs in local communities and tull service pu~ps for those who wish or need that service. The court found these to ~ leglttmate municipal objectives that were not unreasonable.
. C.an tl he concluded that the doctrine of discrimination has no application to zo.mng ~y-laws .bec~u~e of their inherently discriminatory nature? In an- swer~ng thIS.questIOn, tl IS bes~ to recall that the general application of this rule IS movtn~ ~wa~ from a tormal approach towards one that examines whet~~r th.e ~ISttn~tlO~ made ha~ som~ rational purpose. A municipality's exercIse 01 dIscretion III the creatIOn of zones will not he disturbed h . h' f d' . were tl
as ~ome oun at IOn tn pro~r planning principles. In this regard, courts must be.~areful. to respect mumclpal policy decisions, even where those decisions shift puhllc hurdens on private landowners. Such allocations of burdens and ben~fits are part and p~rcel 01: the planning process. Such an approach does not III any way aut.honze arhtlrary or unjustifiable decisions. Discretion is not the. same .as w.hlm or cap~ice and the courts are properly exercising their ~~pervlsor~ lunct~on by I?oklllg behind municipal zoning decisions to criti- cally examllle theIr planmng purposes.
. ~s w!~.h.the., ~ev,~ewof ~he ex~rcise of other municipal authority, the ~oc~nne of bad fatlh ~Iso raises umque concerns in the context of municipal ~ollln~ powers. Bad fatlh has been defined as occurring where "municipal coun.cl 1I0rs have aba~d~nedall honest allempts at legislation and arc corruptly seeklllg by the p~ostttut~on of their legislative powers to advance the ends of some member 01 councilor some favoured indivI'dual "~K S h d 1- ... . ... uc a e IIltllon would seem to be so restnctl ve as to be limited to outrageous situations where
57 (2001), 17 M.P.L.R. Od) 1 (B.C. C.A.).lcav~ 10 appeal n:fus<:d(2001). 20(H CarswdlBC 2072.2001 CarswdlBC 2073 (S.C.c.).
58 Sc~ Howard II. 7'O,.O/l1U(Cily). t t921111O.L.R. 952. 61 O.L.R. 563 (C.A.) 956 [0 L R at 5110IO.L.R.j. • al . . .1.
the council has acted with improper motive or illegally. It has also been emphasized that the courts "should be slow to find had fa~th i~ the conduct of democratically elected representatives acting under leglslattve authonty, unless there is no other rational conclusion."~"
In FirSI Naliollul Properties Lid. v. Highlands (Dislric/),W a developer who owned a large parcel of land allempted unsuccessfully to obtain planning and rezoning approval from the municipality for proposed residential devel- opment. The Nature Conservancy of Canada expressed inter~st i.npurchasing a portion of the property from First National. The Mayor ot Highlands sent lellers to the Nature Conservancy advising them of the plans of FirSl National and what the District may do with the applications. Copies of these lellers were also sent to the Ministry of the Environment, which was assisting the Conservancy wilh its negotiations. When it became apparent lhat lhe Con- servancy could not purchase the lands, the province took over negotiati~l1ls. The province purchased the majority of the property to d~~elo.p some ot t~e land imo residential lots in order lO recover some or all 01 their eJtpenses III acquiring the property. Subsequently, the province applied for and obtained the rezoning that had been sought unsuccessfully by First National. First National again applied for rezoning similar to that obtained hy the province on the land it had retained, and was again refused. The Court foulld that the mayor was motivated by an inlerest in preserving the lands in th~ir nat.ural state, and that this was a proper municipal purpose, even where lawtul aCl.lOns carried out in furtherance of lhat purpose adversely affect the interests ot one
or more property owners.61 Similarly, in the case of Wall & Redekop Corp. v. Vallcouver (City),h2
the Court refused to acc~d~ to an application lO quash a by-law passed by the Council of the City of Vancouver based on the grounds that the by-law was passed in bad failh. In this case, th~ Council had rezoned certain property to permit a development and issued th~ applicant a permit.fo~ the ~evelop~lent. A civic election was subsequently held and the new maJonty 01 CouncIl was composed of those opposed to the development. The new Council in sub- stance rezoned the property and the value of the property was diminished as a result of the development becoming a non-conforming use. The Court held that the Council had acted in what it conceived to be the public interest when it decided to rezone the property. This could not be impugned as bad faith. There was no suggestion that the action was founded on fraud or oppression
59 MacMilla/l Bloedel LId. II. Galiallo Islmld Trusl Commiuee (1995). 10 B.C.L.R. (3J) 121 ,C.A.). leavc 10 appeal refused (1996). 20 B.C.L.R. OJ) xxxv (S.C.c.); sc:e also Fim NmiO/lal Pr0l'erlies LId. II. Higlilclllds (Vistriu) 12(01). 17 M.P.L.R. OJ) 80 (B.C. C.A.). Ic:avc 10 appeal refused (2001). puOt\ S.C.C.A. No. 365. 2001 CarswdlBC 21107.2001
CarswcllBC 2808. 60 Ibid. 6t lbitl. al 102. 62 (t974). 47 D.L.R. (3d) 155 (B.C. C.A.). affimlcd (1976), 16 N.R. 435 IS.c.e.).
or improper motives, or that the members of Council were seeking to attain private ends or the gratification of private desires.
These two cases would appear to support the view that bad faith is a restricted doctrine. However, there have been a number of attacks on munic- ipal zoning power on the basis of bad faith, and some have been successful. Part of the reason for this success may be that planning powers are always enacted for the benefit of certain groups in society, as discussed earlier. A further reason is that bad faith has not been limited to the serious situations suggested by the case law.
In Wall & Redekop Corp., what the Council was in fact doing was supporting the interest of other private individuals in society, those opposing the project, over the interests of the developer. Moreover, the above two cases stand in stark contrast to other cases where bad faith has been used in a much broader way, such as WilllOll,b.1which was referred to earlier. There the Council rezoned lands to prevent the use of a mansion as a Zoroastrian temple. The Court refers to the fact that the by-law was pushed through with inordinate speed, that it was designed to give the pretence of being operative in a larger area, that usual Borough practices and procedures were set aside and that the two parties most affected were kept in the dark. The Borough gave public notice of the by-law and held an open meeting on it only after proceedings in the Court were well advanced. The finding that on "these facts the council acted unreasonably, and arbitrarily, and without the degree of fairness and openness and impartiality required of municipal government" indicates that a finding of bad faith can also rest on inappropriate process.
This use of "bad faith" by the courts would appear to be a most appro- priate one. It is similar to the "fairness" doctrine that is discussed in Chapter 10 and that has been developing in the case law. It is a use of bad faith that is less likely to result in judicial review on the merits than a use which considers whether a public or private purpose has been served.
It should be noted that in the Will1011 case,l>l the Court also found that the municipality acted in bad faith in that it discriminated by singling out only one property. It has already been argued that the zoning of one property is not necessarily discriminatory. Rather it is whether the zoning by-law bears any rational relationship to the purposes of planning or whether instead the action substantially interferes with the interests of minorities.
In the case of Pedwell v. Pelham (TOWIl),M the Town of Pelham passed a by-law which froze development on the plaintiffs lots. The Court was not persuaded by the Town's submission that they were acting in the best interests of the municipality. The Court held that that kind of motivation was not
enough when their activities had not been frank and imp.artial. Meeli~gs h~d taken place with no notice to the plaintiff .with the vIew to stoP~lIlg t c
I t No report was ever made. As a resull of these meetlllgs, an ~eve. op~en~r~1 by-law was passed to freeze development. A l.eHer was s~nt IIltenma c Iicants which set out phony concerns and non-applicable ~~n~~~- to t~e PPA 'ncamera meeting was held again without notice tathe plallllllls,eratlons. n I'd Th C rls found that at which time the interim control by-law was passe. e ou.. ". Council had acted in bad faith, even though they.did not "techlllcall~ ~Ifen~. any requirements contained in the legislation WIth respect lO the glvlllg 0 notice."ll6 The court stated:
IAImunicipalily cannol doro. ilself in th~ pubic inter~st v~il and hope.to es~a~ . t' . I'the good faith brought to bear on the resolullon ole
scrultny on t Ie Issue 0 th citizens issues In these days of increasing accountability of governmenls to e ..d d who have voted them into oflice, I have no doubt that It would be ~onsl ere only nomlalLO insist that a municipal corpora.ti.onact in t~e PUb~I~/~te~e~tbil:~ as well that in doing so it demonstrate good Ialth to the parlles a octe y d~cision.·1
The Court suggested that the sole motive of the 1~1Unic~palitywas tl~e frustration of the developers. This was exactly the motive of the T?~ns.I~~ of Scarborough in the BOlldi case,blI in which the Sup~eme Sourt of ana. ~ u held the b -law. In addition, contrary to First N~lIo~lQl, the ~~urt was
I p Ydw'ltll whether the municipality was acting In the public Interest. ess concerne . . )1U' . f rth in-
The 'ase of Rodellbush v. North Cowichall (DlSlrlct IS au .. er dication o~ the importance of improper process as a groun~s for bad :altt I~
nici alh led Rodenbush, who was gOing to app y or a that case the mu P Y .., h bel' f that the application
rmit, into delaying formal application In t .e. .Ie. . ~ould be approved. In the meantime, the mUnicipality amended the by-law to prevent the development. The by-law was struck down.
G. PROHIBITING ALL USES
Th Rodellbush" case raises another ground for the overturning of mu- nici al ~ -laws. In that case, the by-law initially pr~~ent~d all use of Roden- bUS~'s I;nd through a rural restricted zoning c1asslhcat~on. The <:=~Url he~d that the municipality had acted to reserve private land tor a public purpos~ and thus acted in a discriminatory manner against the owner. T~e ~ourt state that the action amounted to conliscation since the land was Jelt With no other
63 See supra nOle 55. 64 Ibid. 65 (1998), 47 M.P.L.R. (2d) 222 (Onl. Gen. Div.), addilional reaS()JlSal (1999), 1999
CarswellOm 634 (Gen. Div.), varied (2003), 37 M.P.L.R. (3d) 161 (Onl. C.A.); see also Hu/lel/ v. Halifax (City) (1975). 13 N.S.R. (2d) 403,66 D.L.R. Od) 524 (C.A.).
66 Ibid. aI234. 67 Ibid. al 236. 6ll See su/Jrt, nole:50. 69 See supra note 59. 70 (1977), 3 M.P.L.R. 12l, 76 D.L.R. Od) 731 (B.C. S.c.).
71 Ibid.
normally take it outside its exempt status.w A person or business should not become the victims of their own success, as it were.) Ultimately, if a use is to lose its non-conforming or acquired status, it must be of a different type.
In considering whether the type of use has changed, Binnie J. sets out two relevant considerations. Firstly, the new activity must not be too remote from the actual use. But this again, as Binnie J. concedes is largely determined by how broadly the existing non-conforming activity is detined. Secondly, the new activity should not create an undue additional or aggravated problem for the municipality. This consideration of "neighbourhood effects" is a significant development, as it allows courts greater freedom to balance the rights of landowners with the rights of the municipality and the public more generally. These factors must be considered together, along with the intensity of use.-l<lConsequently, a relatively innocuous, but more remote activity, may be as likely to be considered within the scope of the acquired right as a more disruptive, but less remote activity.
Gonthier J., although he expresses his opinion in different terms, adopts an approach that is much the same as the majority. For Gonthier J., the central consideration is whether the new activity falls within the "real and natural expectations" of the user.41 It is these expectations that the doctrine of ac- quired rights protects. In this regard, it is appropriate to assess theexpectations in light of the overall purposes of the zoning regime, since activities that are contrary to these purposes are not reasonable expectations. Ultimately, Gon- thier J., like Binnie J., looks to both the remoteness and impacts of the activity to determine whether it falls within the scope of the acquired rights, but Gonthier conllates the two considerations under the rubric of "expectation."
Where the opinions diverge is in the consideration of the effecls them- selves. Gonthier J. is much more willing to take a broad view of the impacts of erotic entertainment, noting that it is clearly seen in a different moral light than country and western singing. To some degree Gonthier J. situates his analysis in the context of the differential treatment municipalities often give adult entertainment venues, noting the case law upholding the distinct treat- ment of adult entertainment venues within planning regimes. The effects for the minority are more implied than proven. In contrast, Binnie J. specifically notes that those claiming neighbourhood effects have an onus to bring forth evidence of the impacts. In considering the evidence, Binnie J. finds no convincing evidence of undue impact, but his analysis appears focused on physical impact. In the end, despite the Court's attempt 10 place the deter- mination of the scope of uses on objective grounds, the decision appears to turn on the differing views of the members of the Court on the morallurpitude of Ihe activily in question.
A separate issue that often arises with respect to non-confol"ming uses is the requirement that in order to maintain a non-conforming u.se, the use must be continued without interruption. This arises from the basic purpose of the exemption, which is to maintain the slalus quo. However. where the use is not maintained, there can be no expectation that the exemption from the prevailing zoning should continue. This requirement has again been incorporated in many instances into the statutory scheme. In Quebec, for instance, a period of ahandonment or interruption of least six months is required.42 Other provinces have included similar elaborations on this re- quirement.4'
In assessing whether a use has been discontinued, the central consider- ation is the intention of the landowner to abandon the use.44 While seemingly straightforward, the courts' decisions on this point have been unpredictable. For example, in the case of Ga)1ord v. Kolodziej,4' the renting of a tourist house to one family for a summer resulted in the loss of a "lOlirist home" status because the "use" was discontinued. The case does not make clear why the length of tenure should have such a profound impact on the determination of a use. Conversely, in the case of O'Sullivall FUlleral Home Ltd. v. Saull Sle. Marie (Cily),4/t the use of funeral home was held not to be discontinued although no funerals had occurred for at least six months on the premises and they were occupied as a residence. The Court, however, did state in this case that the payment of business tax was an important consideration.
Because of the ability of planning enactments to constrain the right of landowners to use their lands as they see tit, all planning statutes incorporate procedural safeguards to ensure that landowners and other interested parties have notice of changes to planning documents that may affect land uses and provide for opportunities to participate in the decision-making process. Con- sequently, changes to land use rules, even when strongly supported at a local level, cannot be effected without often time-consuming consultation pro- ceedings. Given that landowners often reasonably rely on existing land use rules to guide investment decisions, or similarly, residents may look to these
42 All ACI Respectillg ullld Vse Plal/I/il/g alKi Del'elulJIIlelll, R.S.Q. c. A-19.1, s. 113(18). ·n NewfounJland. Vrball IlIld Rural Plal/I/il/g Au. S.N.L. 2000, l:. U-8, s. 108(2); New Bruns-
wkk. CUIllIllli/lily Plal/Ilillg Acl. R.S.N.B. 1973,l:. C-12, as amended, s. 40 (2); Manitoba, 11,ePlal/I/il/g Au. R.S.M. 1987, c. PSO,s. 51 (I); British Columbia, uJ<:ul Guvemlllelll ACI, R.S.B.C. 1996. c. 323, s. 911(1)(b).
44 1iJrUIIIU(Ci/)') II. Stili Joaqail/ltlVeslmellls Lid. (1978), 18 O.R. (2d) 730 (H.C.), affirmed (1979). II M.P.l.R. 83 (Onl. Div. CI.), leave to appeal refused (1980), 26 O.R. (2d) 775 (note) (S.C.c.).
45 119591O.W.N. 341. 19 D.L.R. (2d) 777 (C.A.). 46 11961) O.R. 413, 28 D.l.R. (2d) I (H.C.).
39 Ibid. at 18IM.P.L.R.). 40 Ibid. at 20IM.P.l.R.I. 41 Ibid. at33IM.P.l.R.).
rules in deciding where to reside, the procedural safeguards found in planning legislation are eminently desirable.
However, as seen in relation to the issuance of building permits, there are occasions where unforeseen consequences of existing land use policies or novel planning situations, may give rise to concerns that continued land development under existing policies may so negatively impact the public interest that more immediate attention to those policies and rules is required. For example, the advent of retail warehouse type development in the 1980s and I990s, the existence of which was simply not contemplated in the plan- ning documents of many jurisdictions across Canada, but whicb had poten- tially dramatic land use consequences, could result in a justitiable desire to prevent such development until its consequences were properly understood by planning authorities. Moreover, in cases where a planning authority, be it the province or a municipality, is currently engaged in reviewing or enacting new planning policies, it may undermine those policies, if development were to proceed prior to the finalization of new policies or contrary to a proposed policy direction.
In recognition of this, and understanding that initiating policy changes may in fact motivate landowners to secure their rights under the existing policies before the policies change (by securing a development or building permit), planning legislation in the majority of provinces permits municipal councils or in some instances provincial authorities, to control development on an interim basis, pending a review or study of existing planning policies.~7 Thus, an interim control by-law allows municipalities to freeze development temporarily by suspending the operation of existing development control mechanisms. The most significant difference with interim control measures is that unlike common planning enactments, interim measures take immediate effect and often do not require prior notice. In this regard, interim control by- laws are more prominent in Ontario where zoning by-laws may be suhjected to long appeal processes. In most other provinces the ability to enact interim control measures is highly circumscribed and is often under direct provincial control. For example in Newfoundland, Nova Scotia and Manitoba, only the Minister may make interim development regulations.~K In other cases, coun- cils may enact interim control measures, but these are subject to provincial
. .' trol lly laws is a roval ~~The legislative purpose underlymg ~ntcn~l con ..- d~~cribed by the Ontario Court of Appeal in the tollowll1g terms.
'. . of interim control by-taws is lOpermit a mUI\i~ipat.ityto An Important purpose. .' r . s Whether an area ISSUItably change its mind. to reconSider ~~so:(\~s::~~;ed in the public illtercst, and zoned, whether develo.pment :; (ble with a municipalities long range'
h th proposed projects are compa I . b weer . . . be decided by municipal counCIls, not y planning objectives are mauers to courts.~'
Under the Ontario Plalllling Act, the only prerequisite to p'ass~ng an .' . . h t council must have directed that a revlew.or II1tenm contr~1 by-I~w IS t \ f land uses policies within the ml!lnicipaltty study be carned out .m re.spec 0 . w ma onl be in effect for a one-
or part t~~e~~'t ~~~ =~~:e~~;~~~ld~~-~afurthe; yea:" While interim con~.r~1 year pen,. al to the Ontario Municipal Board, but un I e by-laws are subject to appe , 34 of the Ontario Pltlllliing A,(,'I, interim loning by-Ia,ws ena~~e~r:.~~~i:;~ t~f~~ct and are in effect during .lhe .app~al control by-laws ta . M ". I Board decisions respecllllg llltenm
. >d A number of Ontano umclpa I d pertl . have noted their extraordinary nature and have counse e cont~ol ~y~~~rsuse H In lighl of this extraordinary nature, a strict and narrhow caullon III ...., wer to enact interim control by-laws as approach to a mumclpaltty s po h " the Ontario Municipal Board
. been articulated.H In t ese cases, . ., h
~~~:~I~~~~te~ tha.t onl~ urgent an~ u_~~:e~~:~~~r~7~~a~~~:r~~~~~s~~~ ~h~ enactment ~t an mlenm con~r~1 !. 'fAppeal isthats.380fthePlwltl,illg view subscnbed to by the On~ano OUrllOb I' ws ' should be givell a liberalh' h . uthorizes intenm contro y- a , .. Act. w IC. a . t1. 'th the purpose of lhe section and recognIZIng interprelall~n mthaccp':bl~~~~t::est should take precedence over tile rights of that protecllng e individuallandowners.~
41) i.e. PEt and Quebec. . I C I HallOlI Hills (TolI'lI) (1997).35 OK (3d) 50 Equil)' Wasle M{I/lagemell/ uJ CallOl a urp. I.
321 (C.A.). "8 t (1) 51 PltlllIIillg ACI, R.S.O. l~, c. p.n, s.. I(,~ij69-81 Re(t988), 220.M.B.R t29(M.B.); 5? Scarborougll ICil)') IlIluml CUII/rol B)'- {II> • B R '00 (M B )- C R (1993) ?90 M .' ., .
Nurlll Amuicall Life Assurallce. u ... ~ .J. ';( 199) ·?90.M.B.R. 129(M.B.); 1281504 53 See for example. Corbeil.v. H~~mllUnlloIl'1U51/~P L R (3d) 289 (O.M.B.).
Oll/ario ud. I'. Orallgevdle ( I OIl'II)(199;6:. : l~o'7 j 5i 13 Olllario Illc. v. <OlIawa (CiI)') 54 EquilY Wasle Mallagemenl. supra note 2'Oseea. LId v Wllilcliurch-SlOutrville (1C)\1J11)
(1987).63 O.R. (2d) 102 (H.C.); 89347. 11/(/1'10 .' (l99t).7 M.P.L.R. Od) 296 (Onl. Gen. DIY.).
47 Nl:wfoundland, Urban £lnd Rural Plallning At'l. 2()()().S.N.L. 2000. Co U-8. s. 12; Prince Edward tsland. Planning ACI. R.S.P.E.J. 199M,c. P-8. s. 10; Noya SCOlia.Munidpal (JOII- emmelll Au, S.N.S. 1998. c. 18. s. 198(2); New Brunswick. COIlUmwily Planning Au. R.S.N.B. 1973, c. C-12. as amended. s. 71; Maniloha, 11le Planlling Acl. R.S.M. 1987. c. P80. s. 57; Brilish Columbia. Loud (Juvemmelll ACI. R.S.B.C. 1996. c. 323, s. 9111t JIb); Onlario, P/(lIl11il'g An, R.S.O. 11)90,c. P. n, s. 38; Qu.:bec. An Al'l RespeCling umd Use Planning alld Delle/ul'melll. R.S.Q. c. A-19.1. s. 61; Saskalch.:wan. Planning allli [)t'I'e/· ul'melll ACI. 1983. S.S. 1983-84. c. P-13.1. s. 105.
4M N.:wfoundland Urban and Rural Planning At'l. S.N.L. 2000. c. U·8. s. 12; Noya Scolia, Municipal Govemmelll At'l. S.N.S. 1998, c. 18. s. 19M(2);Maniloba, Tile Planning An, R.S.M. Il)lH. c. PMO,s. 57.