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Municipal Law - Bylaws and resolutions - Enforcement of bylaws

Thursday, September 15, 2016 @ 8:00 PM  

Appeal by the Municipality of the County of Annapolis from dismissal of its application to enforce a land use bylaw. The Coach House was part of a former Canadian Forces Base and was not initially subject to a land use bylaw. Occupation of the building had ceased in 1996 and it largely remained vacant. A prior application to use the Coach House as an apartment, workshop and office were denied. In 2000, a development permit was granted to use the building as a workshop and office. The building was vacant in 2002 and 2003. The respondents purchased the Coach House in 2004 and used it as a residence thereafter. In 2012, the Municipality wrote the respondents to advise residential use of the property was a non-conforming use and asked them to vacate the premises. The respondents initially advised that residential use ceased. They subsequently received legal advice that use as a residence represented a legal, non-confirming use. The Municipality applied to enforce the land-use bylaw. The application judge accepted the respondents’ position. The Municipality appealed.

HELD: Appeal allowed. The application judge did not err in finding residential use was made of the Coach House at the time of the first publication of the notice of the intended bylaw in 1998. However, the application judge erred in failing to find a six-month discontinuation of such use. There was no dispute that the building was not used as a residence between 2000 and 2004. The application judge erred in characterizing that non-use as flowing from a misrepresentation by the Development Officer who approved the permit for use of the building as a workshop and office, but not a residence. The Development Authority that owned the building accepted the Officer’s decision and used the property for commercial purposes, abandoning any non-conforming use that might have existed at that time. The determination that there was an intended and continued residential use of the property after 2000 was without evidentiary foundation. The appeal was allowed with an order that the respondents were enjoined from using the Coach House for residential purposes.