Legal Non-Conformity

Under the Municipal Act (since renamed the Local Government Act), municipalities may pass zoning bylaws to regulate the use and density of land and the use and location of buildings. Often the existing use of land or buildings will not conform to the requirements of these new zoning bylaws. Section 911 of the Municipal Act (formerly section 970) allows the existing use of land or a building to continue despite a new bylaw as a legal non-conforming use, on certain conditions.

The existing use may continue unless the use is discontinued for a period of six months, and the discontinuance is not the result of normal seasonal or agricultural practices. As well, if a non-conforming building is damaged or destroyed to the extent of 75% or more of its value above its foundations, it cannot be repaired or replaced unless it conforms to the bylaw.

If the use and density of an existing building conforms to a new bylaw but the building’s siting, size or dimensions do not, section 911 allows the building to be repaired, extended or altered as long as it does not result in a worse contravention of the bylaw.

The BC Court of Appeal recently considered the interpretation of section 911. The case dealt with a family that co-owned a parcel of recreational property with several other individuals in a communal ownership arrangement. Each owner was entitled to the exclusive use of one of 17 segments of the property, and each segment had a cabin on it. In 1977 the local regional district passed a zoning bylaw allowing only three cabins on the property. The use of the 17 existing cabins was allowed to continue as a legal non-conforming use.

In 1991 the family’s cabin was partially destroyed by fire, to the extent of approximately 50%. Perhaps unaware of the provisions of the Municipal Act, the family allowed the local fire department to burn the cabin to the ground as a training exercise. When the family applied to rebuild the cabin, the regional district refused to grant a building permit. The family rebuilt the cabin anyhow, and despite a stop work order issued by the regional district.

The regional district applied to the court for an order to have the cabin removed, on the basis that it was not allowed under section 911 because the original cabin was destroyed beyond 75% of its value. The trial judge ruled that, when determining if a building has been destroyed beyond 75% of its value, section 911 should be interpreted to apply to the buildings on a parcel of land as a whole, and not to the single building at issue. Because the fire did not affect the other cabins on the land, section 911 did not prohibit the replacement of the family’s cabin.

The Court of Appeal disagreed. It held that section 911 must be interpreted to apply to each separate building on a parcel of land (unless the building is one of several other buildings that together form a single enterprise, such as a farm or a camp). It stated that the purpose of section 911 is to ensure that non-conforming uses are not continued indefinitely, and that property eventually comes into conformity with municipal zoning bylaws. As a result, the court ruled that the cabin was not permitted as a legally non-conforming use under section 911.

However, the court refused to order removal of the cabin. The court held that it would be “highly inequitable” to order removal, given that the cabin was almost identical to its predecessor, and that it was not disruptive to adjacent property owners or to the environment. The court acknowledged that this was “one of those rare cases” where it was appropriate for the court to refuse to enforce a statute.

The ruling didn’t leave the family totally off the hook. They were ordered to bring the cabin into compliance with new floodplain requirements