Zoning Bylaw Charges: Improper Use of Land Contrary to Permitted Purposes

Question: What should I do if I'm charged with violating zoning restrictions?

Answer: You can defend against zoning violation charges by demonstrating due diligence efforts, showing that your property's use falls within permitted or exempted activities, or relying on past municipal advice regarding the legality of your operations. Engaging with legal representation can guide you in forming a strong defence based on the specifics of your case.

Violating Zoning Restrictions

Municipal zoning bylaws are foundational to how land and buildings may be used within a given jurisdiction.  These bylaws categorize properties into zoning designations such as residential, commercial, agricultural, or industrial, and regulate what types of activities may legally occur within each designation.  When a business operates in contravention of these regulations, a municipality may pursue enforcement proceedings under a provincial offences regime.

This article explores the legal nature of such charges, outlines common defence strategies, and highlights a leading precedent that provides practical insight into successfully contesting a zoning bylaw violation.

Zoning Offence Charges

A charge of operating a business contrary to zoning typically arises when a municipality alleges that a business is using land or buildings in a way not permitted by the applicable zoning designation.  These offences are usually prosecuted under the authority of a municipal bylaw in conjunction with enabling legislation, such as a planning or municipal act.

Although the specific structure of zoning bylaws varies from one municipality to another, the elements of the offence generally require the prosecution to prove, beyond a reasonable doubt, that:

• The defendant owns or occupies the subject property;
• The property was used in a manner inconsistent with the permitted uses for that zoning designation; and
• The inapplicability of any exemption or lawful non-conforming use justified the activity.

Involves Strict Liability

A charge of improper use of land contrary to zoning is a strict liability offence.  This legal classification means that:

• The prosecution is without a need to prove that the property owner intended to violate the bylaw; and
• The defendant may raise the defence of due diligence, which asserts that all reasonable steps were taken to comply with the law.

Strict liability strikes a balance between full criminal liability (which requires proof of intent known in law by the Latin term mens rea) and absolute liability (which is without any available defence).  The availability of a due diligence defence makes it critical for defendants to demonstrate efforts to comply with the zoning requirements.

Available Defence Strategies

A person charged with a zoning bylaw infraction may be able to successfully defend the charge, depending upon the specific facts of the case, based upon one or more of the following defence theories.

Due Diligence:
To rely on this defence, the defendant must demonstrate that reasonable steps were taken to understand and comply with the zoning bylaw.  These steps may include:

• The consulting of zoning maps or consulting with legal counsel before commencing operations;
• The making of inquiries with bylaw enforcement or municipal planning officials; and
• The ceasing of operations promptly upon receiving notice of potential non-compliance.

Permitted Use or Exempted Use:
The defendant may show that the activity in question actually falls within a permitted use under the bylaw, or within an exempted use created by an amendment to the bylaw.  As an example, in Chatham-Kent v. Benoit, 2004 ONCJ 446, the defendant was charged with using a lot for a non-permitted business use; however, the Court found that an amending bylaw expressly allowed a "motor vehicle repair shop" as a permitted use, which applied to the property in question.  This created a reasonable doubt and resulted in dismissal of the charge.

Legal Non-Conforming Use
A property may benefit from grandfathering protections if:

• The non-conforming use was lawful under the previous bylaw; and
• The use continued without interruption after the bylaw was amended.

In Benoit, the Court found strong evidence of long-standing use of the property for vehicle repair, but declined to rule definitively on the issue due to insufficient evidence of what the prior permitted uses were.

Officially Induced Error:
If a municipal officer or bylaw enforcement official has previously advised that the use was lawful, and the business owner reasonably relied on that advice, a defence of officially induced error may apply.  In Benoit, the Court accepted evidence that two prior owners had been advised by a municipal officer that the business use was lawful.  That advice, passed on to the current owner, was sufficient to defeat the charge even if the bylaw would otherwise have prohibited the use.

Considerations

When defending a charge under a zoning bylaw, the person charged:

• Should obtain and review all relevant zoning bylaws and amendments affecting the property;
• Should gather historical documentation or witness evidence showing the continuity of use;
• Should investigate any prior communication with municipal officials regarding the property's use; and
• Should retain legal representation to frame the strongest available defence based on the facts.

A thorough and evidence-driven approach is essential, as the burden remains on the prosecution to prove the violation beyond a reasonable doubt; but, a defendant must be prepared to raise a credible defence to create that doubt.

Conclusion

Defending against a charge of operating a business contrary to zoning requires careful legal and factual analysis.  By understanding the nature of strict liability offences, identifying whether the business activity falls within permitted or non-conforming uses, and presenting clear evidence of due diligence or officially induced error, a person charged with violating a zoning bylaw can effectively respond to municipal enforcement proceedings.