Legal Non-Conforming Uses After Saint-Romuald: A Response

(The Digest of Municipal and Planning Law can be found here: http://www.carswell.com/description.asp?docid=229)

In 2001, the Supreme Court of Canada used a case from Quebec that dealt with acquired rights under the Civil Code to attempt to clarify the common law on non-conforming uses. In that case, Saint-Romuald (City) v. Olivier, [2001] 2 S.C.R. 898, 22 M.P.L.R. (3d) 1, 204 D.L.R. (4th) 284, 275 N.R. 1,2001 CarswellQue 2013 [summarized 6 D.M.P.L. 244], Justice Binnie discussed what kind of change would be necessary to remove a landowner’s right to a non-conforming use. In short, that right can be lost by an extensive increase in intensity, a current (“new”) use that is too remote from the legal non-conforming (“old”) use, or a change with neighbourhood effects that outweigh the landowner’s interest.

In 2003, Professor Robert J. Currie critiqued this decision in “The ‘Poop Factor’: Acquired Rights and Legal Non-Conforming Uses After Saint-Romuald” (2003), 36 M.P.L.R. (3d) 190, and argued that the distinction between increased intensity and neighbourhood effects is “redundant.” Although Justice Binnie was not explicit, there is a subtle difference that Professor Currie overlooked. This article will begin with an outline of the test from Saint-Romuald and Professor Currie’s objections. It will then consider the distinctions between intensification, remoteness, and neighbourhood effects before concluding with an explanation of how the three factors are distinct and relevant.

The Saint-Romuald Test

In Saint-Romuald, a legal non-conforming country western bar was transformed into a strip club by new owners. In response, the municipality charged that the legal non-conforming use had been replaced by a new non-conforming use and applied for an order to stop the new use. In paragraphs 9 to 12 of his decision, Justice Binnie discussed the role of zoning and explained that “[p]rivate law,” which “has long protected adjoining owners in the enjoyment of the amenities of their land,” eventually gave way to “more sophisticated land use controls” that “were to some extent confiscatory of the owner’s rights.” Non-conforming uses were recognized in order “[t]o counter the concern about confiscation without compensation.” Thus, the only purpose of non-conforming uses seems to be to protect the landowner’s interest. Justice Binnie then considered the relevant law and outlined two distinct tests for when a change in a non-conforming use would result in a new type of use.

The first, and less nuanced test is in paragraph 34:

The landowner overreaches itself if (i) the scale or intensity of the activity can be said to bring about a change in the type of use, as mentioned above, or if (ii) the addition of new activities or the modification of old activities (albeit within the same general land use purpose), is seen by the court as too remote from the earlier activities to be entitled to protection, or if (iii) the new or modified activities can be shown to create undue additional or aggravated problems for the municipality, the local authorities, or the neighbours, as compared with what went before.

This test states that a new use is a new type of use if:

There is too much intensification;
The new use is too remote from the old use; or
The new use is unduly problematic for the community.

However, this appears near the beginning of the decision and does not take into account much of the later discussion. In any case, it does fit with the later test.

Justice Binnie provided a seven-point summary of his decision in paragraph 39:

1) It is firstly necessary to characterize the purpose of the pre-existing use…The purpose for which the premises were used (i.e., “the use”) is a function of the activities actually carried on at the site prior to the new by-law restrictions.

The first point is simply that before comparing the new use with the old use, it is necessary to determine what type of “use” the old use was.

2) Where the current use is merely an intensification of the pre-existing activity, it will rarely be open to objection. However, where the intensification is such as to go beyond a matter of degree and constitutes, in terms of community impact, a difference in kind (as in the hypothetical case of the pig farm discussed above), the protection may be lost.

This point says, first, that it is necessary to determine whether the new use is merely an intensification of the old use. Then it is necessary to consider whether the intensification is so great that the new use is in fact a new type of use.

3) To the extent a landowner expands its activities beyond those it engaged in before…the added activities may be held to be too remote from the earlier activities to be protected under the non-conforming use. In such a case, the added activities are simply outside any fair definition of the pre-existing use and it is unnecessary to evaluate “neighbourhood effects.”

The third point is to consider whether the new use is so different from the old use that it cannot be considered the same type of use (for example, a motorcycle club instead of a marina as in Tay (Township) v. Switzer, [2002] O.J. No. 5380, 2002 CarswellOnt 5054 (S.C.J.)).

4) To the extent activities are added, altered or modified within the scope of the original purpose…the Court has to balance the landowner’s interest against the community interest, taking into account the nature of the pre-existing use (e.g., the degree to which it clashes with surrounding land uses), the degree of remoteness (the closer to the original activity, the more unassailable the acquired right) and the new or aggravated neighbourhood effects (e.g., the addition of a rock crusher in a residential neighbourhood is likely to be more disruptive than the addition of a fax machine). The greater the disruption, the more tightly drawn will be the definition of the pre-existing use or acquired right….

The fourth point involves a test in which the landowner’s interest is weighed against the community’s interest. To perform this balancing act, one must take into account three factors. Unfortunately, Justice Binnie did not describe how those three factors should be compared to each other. The most reasonable interpretation seems to be that the first factor is the extent to which the old use differed from the surrounding uses and affected the neighbourhood. The second factor is the difference between the old use and the new use. The third factor is the difference between the neighbourhood effects of the old use and those of the new use.

To balance the three factors, one must determine how the change in the use itself (the landowner’s interest as represented by the second factor) compares to the change in neighbourhood effects (the community interest as represented by the third factor). Since the second and third factors take the first factor into account, this should satisfy Justice Binnie’s intent. The result of this balancing act is that a greater difference between the old and new use will result in a lower landlord interest, while a greater difference between the old and new neighbourhood effects will result in a higher community interest. Thus, to maintain non-conforming use status, a greater change in the use itself requires a lesser change in the neighbourhood effects (and vice versa).

5) Neighbourhood effects, unless obvious, should not be assumed but should be established by evidence if they are to be relied upon.

This fifth point is an evidentiary consideration for the previous point.

6) The resulting characterization of the acquired right (or legal non-conforming use) should not be so general as to liberate the owner from the constraints of what he actually did, and not be so narrow as to rob him of some flexibility in the reasonable evolution of prior activities. The degree of this flexibility may vary with the type of use….

This sixth point is a further explanation of the first point.

7) While the definition of the acquired right will always have an element of subjective judgment, the criteria mentioned above constitute an attempt to ground the Court’s decision in the objective facts. The outcome of the characterization analysis should not turn on personal value judgments, such as whether nude dancing is more or less deplorable than cowboy singing.

This is a comment on what evidence should be considered relevant to all of the above determinations. It would probably not have been necessary if Saint-Romuald were not about a strip club and the minority had not based its decision on the change in moral character.

While the first test is in more of a test form than the seven summarizing points, it clearly does not contain the particulars of the seven points. In contrast, the seven points are really a long exposition of a four-step Saint-Romuald Test:

Characterize the purpose of the old use in a flexible yet defined manner;
If the new use is an intensification of the old use, determine whether the effects of the new use are so intensified that they result in a characterization different than that in Step 1 (there is too much intensification); if they do not, then
Without reference to morality, determine whether the new use should be characterized in a different manner than in Step 1 (the new use is too remote from the old use); if it should not be, then
Determine whether the new use, although characterized in the same manner as the old use, is so different from the old use that the change in proven neighbourhood effect cannot be justified (the new use is unduly problematic for the community).

[The italicised text represents the earlier test’s three steps.]

Justice Binnie essentially began with a pith and substance type of characterization, provided two litmus tests to catch obviously unacceptable changes, and then outlined a test by which all other changes can be judged.

Problems with Intensification?

In his article, Professor Currie was concerned with the inner contradictions of the test. After considering some applications of Saint-Romuald, he argued at pp. 211 - 212:

On the whole there is an analytical mushiness to the Saint-Romuald criteria, stemming in particular from the Court’s attempt to draw a distinction between a modification which constitutes an “intensification” of use, and a modification which results in “neighbourhood effects.”…

….

…The Court clearly linked the idea of intensity to “increasing business,” described on the facts of Saint-Romuald as.”… more customers. More cars. More noise.” Yet intensification in and of itself cannot matter very much … Rather, it must be the effects produced on the surrounding community that give intensification any relevance at all.

Essentially, he was saying that there is no relevance to intensification unless it has negative neighbourhood effects. This is partly a criticism of Justice Binnie’s description of unacceptable intensification with reference to community effects, but it also seems to be an argument that there is no other relevant way to understand intensification. Although there are some examples mentioned at p. 212 where “one can imagine dealing with some zoning issues where intensity of use might, by itself, be relevant…it seems counter-intuitive that an intensification of use could produce a ‘change in kind’ when there are no effects on the neighbourhood.” If Justice Binnie only provided examples of intensification that were unacceptable due to neighbourhood effect, Professor Currie argued that no other examples would provide satisfaction.

An example of where this might cause a problem is 4310845 Manitoba Ltd. v. Morris (Rural Municipality), [2002] 4 W.W.R. 383, 24 M.P.L.R. (3d) 236,161 Man. R. (2d) 202,2001 CarswellMan 607 (Q.B.) [summarized 6 D.M.P.L. 314]. In that case, prospective buyers of a property attempted to certify that a change from a chicken feedlot to a hog feedlot would not result in the loss of non-conforming status. After considering much evidence on intensification, Justice Duval explained in paragraph 52:

I have considered both the “remoteness” and the “neighbourhood effects” factors. The totality of the evidence leads me to conclude that the proposed operation would be sufficiently remote from the pre-existing non-conforming use (the Siemens’ laying-hen poultry operation) such that it would not constitute a continuation of that type of use. The proposed hog feedlot operation would modify the pre-existing use to such an extent that its “character” would be altered. Further, a consideration of the suggested neighbourhood effects would weigh against the applicant’s position.

As Professor Currie pointed out, Justice Duval seems to have determined that the new use was too remote from the old use; thus failing the third step of the Saint-Romuald test. Perhaps the intensification evidence was nothing but a time consuming and expensive red herring. However, Justice Duval depended on the “totality of the evidence” and gave no other lead as to what evidence was relevant to her conclusion. It is reasonable, if not necessary, to assume that she took into account the plethora of intensification evidence summarized throughout most of her decision. In this particular example, Justice Duval’s terminology probably concealed the significant relevance of intensification.

Yet Justice Duval might not have given reasons for her finding of remoteness because she had a similar yet opposing difficulty to that of Professor Currie. Perhaps she felt that Justice Binnie clearly considered “intensification” evidence separate from “neighbourhood effects” evidence, yet was determined to include the intensification evidence in her ultimate balancing act. As a result, she might have been purposely vague in order to remain appeal proof. If she had read The “Poop Factor,” she could have simply turned the intensification evidence into neighbourhood effects evidence and performed the balancing act. This would satisfy any concerns about unnecessary intensification evidence, but it would also lead to the conclusion that there truly is no difference between intensification and neighbourhood effects. Thus, why bother with the second step?

Problems with Remoteness?

However, the same could be said for the third step of remoteness. Justice Binnie argued in paragraph 35 that “[t]he relevance of remoteness is self-explanatory” and Professor Currie agreed at p. 211 that “the idea of remoteness is easily grasped.” However, Justice Duval considered that chicken and hog feedlots were similar enough to allow extensive evidence on how a hog feedlot might be nothing but an extreme intensification of a chicken feedlot. To paraphrase Professor Currie, remoteness in and of itself cannot matter very much. If the proposed hog feedlot had been less intensive than the chicken feedlot, one wonders whether Justice Duval would have found the new operation to be too remote. Indeed, her comment in paragraph 50 that “[a]lthough the composting operation and the sale of compost material, if properly managed, might prove to be a progressive and more environmentally sound management of waste than was the Siemens’ operation, it nevertheless constitutes a change in the pre-existing use of the property,” seems counterintuitive. Why should more environmentally friendly waste disposal be denied only because it “constitutes a change in the pre-existing use”?

Problems without Neighbourhood Effects?

Ultimately, concerns with intensification seem to stem from a utilitarian view that a change in a non-conforming use should not be disallowed unless it would have a negative community effect. Although Professor Currie only focuses on the problem of intensification without neighbourhood effects, the same argument can be made regarding remoteness without neighbourhood effects. There is just no logical reason to disallow a change in non-conforming use unless there is some negative effect.

However, this would not take into account the “underlying policy goal of municipal land use planning … to eventually bring non-conforming uses into conformity with the current zoning requirements” that Professor Currie referred to at p. 194. In R. v. Grant (1983), 23 M.P.L.R. 89, 1983 CarswellOnt 586 (Ont. C.A.), Justice Corey took this into account when he denied the expansion of a non-conforming property to four self-contained dwelling units. The house had originally contained two such units, but the City of Toronto passed a by-law that turned this into a non-conforming use. As far as neighbourhood effects are concerned, there is no real difference between two and four units in one house. However, Justice Corey explained at p. 92 that “the by-law was designed to control the density of population in the area,” and any intensification of the non-conformity “flies in the face of the intent and purpose of the by-law.” One might argue that increased density is a neighbourhood effect, but that seems to be nothing other than an unnecessary refusal to allow for the distinction that Justice Binnie must have intended.

Indeed, if landowners could change non-conforming uses at will as long as there was no negative community effect, then they would easily be able to maintain commercial operations in residential zones. For example, a truck stop could become a gas station, which could become a restaurant, which could become a catering service, and on to no end. Similarly, the ability to change intensification without regard to any factor other than neighbourhood effect would allow a non-conforming pig farmer in a remote, environmentally irrelevant area to change from a family farm to a commercial farm. There would be no effect on the community as a whole, other than the fact that a non-conforming pig farm would be able to continue when, without the ability to increase intensity, it might otherwise have become economically unviable. In order to firmly weave non-conforming uses into the fabric of municipal land use planning, it is necessary to focus on more than their neighbourhood effects.

Intensification without Neighbourhood Effects

Logically, the second and third steps of Justice Binnie’s test should be understood as failsafe measures to remove those obvious changes in use that do not necessarily have negative community effects. Professor Currie is likely correct that almost all Step 2 evidence will be relevant for Step 4, but it is equally true that all Step 3 evidence will be relevant for Step 4. The only difference is that Justice Binnie referred to “remoteness” in both Steps 3 and 4, yet “intensity” as opposed to “neighbourhood effects” in Steps 2 and 4. Perhaps this is because a rock crusher as in Lordon v. Pitman (1980), 116 D.L.R. (3d) 573, 33 N.B.R. (2d) 23, 80 A.P.R. 23,1980 CarswellNB 74 (C.A.), while it will have obvious neighbourhood effects, is not “intensification” in the way that an expanded quarry would be. For example, a person who lives beside a quarry will likely not care if it is expanded along an environmentally and aesthetically insignificant five mile stretch of road away from his property. Similarly, neighbours might not be affected by the intensification inherent in a mine expansion from one to two miles deep (assuming that there are no adverse environmental effects due to depth in that location). The second step of the Saint-Romuald test, although redundant in some ways, does perform a useful function.

The problem with this understanding is that it seems to fly in the face of Justice Binnie’s explanation of intensification. Indeed, this is one of Professor Currie’s criticisms. In his seven-point summary of Saint-Romuald, Justice Binnie explained that a new use might be a new type of use “where the intensification is such as to go beyond a matter of degree and constitutes, in terms of community impact, a difference in kind” [emphasis added]. However, that seems to be the only occasion in which he specifically tied intensification to neighbourhood or community effects. In his discussion of intensification in paragraph 23, Justice Binnie described Central Jewish Institute v. Toronto (City), [1948] S.C.R. 101, [1948] 2 D.L.R. 1,1948 CarswellOnt 113 as sanctioning “increases in intensity of use so long as the same type of use is continued.” In the following paragraph he stated that acceptable intensification “would be reasonable and limited,” but explained that “the intensification may be of such a degree as to create a difference in kind.” The important measurement seems to be whether intensification in and of itself results in a new type of use, not whether intensification has an unacceptable community impact. Although it is possible to read Saint-Romuald so that intensification requires neighbourhood effects in order to result in a new type of use, it is not necessary.

Conclusion

There is a difference between intensification of a non-conforming use and the neighbourhood effects that result from it. Justice Binnie did not make that clear in Saint-Romuald, but his second step can serve to avoid a change in non-conforming use that involves extreme intensification without neighbourhood effect. That is necessary, because one of the goals of municipal land use planning is to bring non-conforming uses into conformity with current zoning. Nevertheless, there is a good utilitarian argument that any legal non-conforming use should be allowed to continue as long as it has no negative neighbourhood effects. This theory is the logical extension of the argument made by Professor Currie that there is no relevant difference between intensification and neighbourhood effects. However, his criticism was limited to the second step of the Saint-Romuald Test for changes in non-conforming use types. That test requires (i) characterization of the old use, (ii) a test of whether intensification has led to a new type of use, (iii) a test of whether the new use is remote from the old use, and (iv) a balancing of landowner and community interests. The fourth step balances remoteness with neighbourhood effect, which must be understood as closely related to, yet still distinct from intensification. This may not be clear from Justice Binnie’s decision, but there does not seem to be any other way to account for his separate consideration of intensification.