geog 343 march 7.pdf

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Published on 13 Apr 2013
School
U of S
Department
Planning
Course
PLAN 343
VARIANCE,
n.
1.
Permission
to
contravene
a by-
law
to
permit development
of
certain
land
which does
not
meet criteria prescribed
in fee
by-law.
2. A
doc-
^
/
ument
wim^ut
precedential
value
issued,
for an in-
^°
"•
u
,
'
,
v
dividual circumstance
on a
single
occasion,
by a
safety
officer
or
safety manager allowing
(a) a
devi-
ation
from
the
application
of an
enactment,
or
(b)
a
use, other
than
the
standard
use,
of
aregulated
product
if
the
proposed
use is not
specifically
prohibited.
ONFORMING
USK
1.
Use
of
land"o?~
a
mannerorfor
a
purpose
"lawful when
ced and
lawful
prior
to a
change
in a
gov-
land
use
by-law...."
Mehta
v.
Truro
(Town)
,5M.PX.R.
(2d)216at218,104N.S.R.
(2d)
283
A.P.R.
440
(C.A.),
Hallett
J.A.
2. A
lawful
<\
-r~
,.*
.
.
.
_.
,
,
., ,.
\vX
e
use:
(i)
benig
made
of
land
or a
building
or
^
ed
to be
made
of
land
or of a
building lawfully
?CA/VI
constraction,
or
with respect
to
which
all
re-
permits
have
been
issued,
at
the
date
a
zoning
X\
\
or
any
amendment
to
a
zoning
bylaw
affecting
land
or
building becomes effective;
and
(ii)
that
the
date
a
zoning bylaw
or any
amendment
to a
ing
bylaw becomes
effective
does
not,
or in the
e of a
building under construction
or
with
respect
\Cv<W
m/wf>
WAV
which
all
required permits have been issued will
comply with
the
zoning
bylaw.
H
-
MANDAMUS,
n.
[L. we
cofflanand]
1. An
ojrde£
issued
in the
name
of the
court
to
compel
performance^
of a
public
legal
dutyTlt
has
long
been
the
means
by
which
private
litigants
have
required
governmental
T~
authorities
to
discharge
their
obligations.
However,
that
said,
mandamus
remains
a
discretionary
remedy
and one
which
is
available
only
in
specific
circum-
stances.
Dolan
v.
Moose
Jaw
(City),
2008
SKCA170.
2.
"[An
extraordinary
remedy
which]...
lies
to
secure
the
performance
of a
public
duty
in the
performance
of
which
the
applicant
has
sufficient
legal
interest.
The
applicant
must
show
that
he
demanded
the
per-
formance
of the
duty
and
that
performance
of it has
been
refused
by the
authority
obliged
to
discharge
it
...
Another
principle
is
that
a
mandamus
will
not be
issued
to
order
a
body
as to how to
exercise
its
juris-
diction
or
discretion."
*
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/'
V
Planning
and
Development
Aat,
1983
The
Rights
of
Landowners
l.Mandamus
Applications
and the
Right
to a
Permit
62(2)
Where
a
person
applies
for a
development permit
in
respect
of a
development
or use
described
as a
permitted
use
by a
zoning
bylaw,
the
development
officer
shall,
if the
application
conforms
to the
issue
a
development
permit.
Ottawa
(City)
v.
Boyd
Bujmers,
[1965]
S.C.R.
An
owner's
prima
facie
right
to use
property
can
be
defeated
by
rezoning
if the
municipality
establishes:
SuV.
v^rT;:,
\
uiVXiS
O
(a)
a
clear
intent
to
restrict
or
zone
existing
before
f^'
the
application
by the
owner
for a
building
,.!,
permit,
(b)
that
council
has
proceeded
in
good
faith,
and
(c)
that council
has
proceeded
with
dispatch,
(jl
J
\
Laing
Property Corporation
v.
Regina
(City)
(Sask.
Q.B.)
June
23,
1997, 3:45 p.m.
Laing
Property
Corporation granted
mandamusjirder
requiring
the
City
to
issue
a
permit
for
converting
pui
I.
oTT^property
to
movie
theatres.
Theatres
were
a
permitted
use
when application
was
filed,
but
the
City
had
already
advertised
a
public
hearing
to
consider proposed
bylaw amendments which would
no
longer allow theatres
in the
district.
Court
distinguished
SCC
ruling
in
Boyd
because
bylaw
in
Boyd
had
already
been
passed
arrtfwtiy'awaifm?
approval from
an
external
body.
Here,
the
decision
to
amend
the
Bylaw
had not yet
been
made; council
had
only adopted
a
resolution
to
consider
a
bylaw
amendment.
Even
if
Boyd
applied,
"clear
intent"
requirement
not
satisfied,
since
public participation
process
not
complete.
The
City
could
not
approach
this
process
with
a
"closed
mind".
Planning
and
Development
Act,
1983
207(1)
A
council shall give notice
of its
intention
to
consider
a
bylaw
adopting,
amending
or
repealing:
(a)
an
official
community
plan...
(c)
a
zoning bylaw...
The
Rights
of
Landowners
2,
Legal
Non-conformities
43,
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The
Planning
and
Development
Act,
2007
The
Planning
and
Development
Act,
2007
88
Subject
to the
other
provisions
of
this
Act,
the
enactment
of a
zoning bylaw
or any
amendment
to a
zoning bylaw does
not
affect
any
non-conforming
building,
non-
conforming
use or
non-conforming site.
The
Planning
and
Development
Act,
2007
.
2(l)(v) "intensity
of
use"
means
the
density
of
use,
number
of
units,
size
of
development,
or
bulk,
form
or
number
of
buildings
or
structures
for a
permitted, discretionary
or
prohibited use.
2
(l)(ff)
"non-conforming
building"
means
a
building;
(i)
that
is
lawfully
constructed
or
lawfully
under
construction,
or in
respect
of
which
ail
required
permits
have
been
issued,
at the
date
a
zoning
bylaw
or
any
amendment
to a
zoning
bylaw
affecting
the
building
or
land
on
which
the
building
is
situated
or
will
be
situated
becomes
effective;
and
(ii)
that
on the
date
a
zoning
bylaw
or any
amendment
to
a
zoning
bylaw
becomes
effective
does not,
or
when constructed
will
not, comply
with
the
zoning
bylaw;
(hh)
"non-conforming use" means
a
lawful
specific
use:
fi)
being
made
of
land
or
a
build
ing
or
intended
to be
made
of a
building
lawfully under
construction,
or in
respect
of
which
all
required permits
have
been issued,
at
the
date
a
zoning bylaw
or any
amendment
to a
zoning
bylaw
affecting
the
land
or
building
becomes effective;
and
(ii) that
on the
date
a
zoning
byfaw
or any
amendment
to a
zoning
bylaw
becomes
effective
does not,
or in the
case
of a
building
under
construction
or
in
respect
of
which
ali
required
permits
have
been
Issued
will
not, comply
with
the
zoning
byfaw;
See
also
(gg)
non-conforming
site.
PDA
Limitations
on
Non-conformities
-
Summary
s.
89 - if
non-conforming
use
is
discontinued
for
a
period
of at
least
12
consecutive
months,
any
future
use of the
land
or
building
must
conform...
s.
90(1}
- A
non-conforming
use
must
not be
increased
in
intensity,
area
or
volume
within
a
building,
or on the
parcel
it
occupies.
(2)
A
non-conforming
use
must
not be (a)
relocated
within
a
building;
(b)
moved
to
another
location within
a
building;
or (c)
moved
to
another
portion
of the
parcel
on
which
the
ue
is
situated.
(3)
& (4)
restrictions
on
structural
alterations
or
additions.
s.
91
Structural
repairs,
alterations
and
additions which
conform
to the
requirements
of the
zoning
bylaw
may be
made
to a
non-conforming
building,
but
element
of
non-conformity
may
not be
increased.
Appeal
available
if
application
under
subs.
(1} is
refused
s.
92 If the
extent
of
damage
to a
non-conforming building
is
such
that
the
cost
to
repair
is
more than
75% of the
construction cost
to
replace
the
building above
its
foundation,
the
building
is not to be
repaired
or
rebuilt
except
in
accordance
with
the
zoning
bylaw.
Termination
of
Non-Conforming
Use
R.
v.
Hepting
(1984),
37
Sask.
R. 123
(Q.B.)
In
Stavely
(Town)
v.
Fern Brothers,
the
Alberta
Court
of
Appeal
found
that
even
though
a
non-conforming
residence
had
been
vacant
for
more
than
the
six-month
interruption
period
allowed
by the
statute
its
non-
conforming
use
rights
had not
lapsed.
The
owner
had
difficulty
finding
tenants.
The
court
stated
that
a
contrary
conclusion:
"...would
work
a
grave
hardship
on a
landowner
who had a
right
to
continual
lawful
use,
but is
precluded
from
[actual]
use as far as is
practicable.
In our
opinion,
what
is
required
is
a
faona
fide
intention
to use the
premises
and
actual
use so far as is
practicable."
The
Alberta
Court
of
Appeal
reinforced
this
position
in
Granvitle
Savings
Mortgage
Corp.
v.
Calgary
(City)
(1995),
28
M.RLR.
(2d)
96.
The
owner could
replace
a
legally
non-conforming animal
shelter that
had
been destroyed
by
wind.
Justice
Dielschneider
reasoned
that
it had to be
possible
to
replace
the
building
because
it was
essential
for the
legally
non-conforming
use of
keeping
animals
on the
subject
land.
The
prohibition
on
rebuilding
a
non-conforming
building
after
it has
been destroyed should
not be
read
in
isolation
from
the
provisions allowing
lawfully
conforming
uses
to
continue,
because
a
section should
not be
interpreted
in a
manner that would render another section "sterile".
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