Michael Ford (post until Oct. 31/19)
Corporate, Municipal

OCA clears up law around accessory use in municipal bylaws

A recent Court of Appeal decision clarifies that when a zoning bylaw uses the words ‘naturally and normally incidental’ in relation to accessory use, there is no strict requirement for evidence of other similar uses, Hamilton commercial litigation lawyer Mark Abradjian tells AdvocateDaily.com.

Abradjian, a partner with Ross & McBride LLP who acted for the respondent county in the case, says different municipalities use varied wording for accessory use, which has caused some debate on what is required to meet the test.

In the matter, the appellant homeowner sought a declaration that storing and grinding wood on the respondent’s property contravenes the county’s bylaw and she complained about the greenhouse owner’s use of wood, including noise, environmental harm, fire hazard and property devaluation.

Under the bylaw, storing and grinding wood is not a permitted use, so the respondent had to establish that it was an “accessory use” of the greenhouse operation. The application judge interpreted the bylaw as requiring that an accessory use be:

  • naturally and normally incidental to the principal use, namely not unnatural or abnormal
  • subordinate to the principal use
  • exclusively devoted to the principal use
  • located on the same lot as the principal use

Applying this approach, the application judge issued a declaration that storing and grinding of wood is an accessory use to the greenhouse property.

At appeal, the appellant argued that the application judge failed to consider the plain and ordinary meaning of the terms ‘naturally and normally incidental’ and that it means the same as ‘customarily incidental’ — a requirement found in other bylaws and which indicates a restrictive interpretation of accessory use.

The appeal court unanimously disagreed and stated there is no need to determine whether or the extent to which the language of this bylaw differs from language in other bylaws.

“The words of this bylaw are to be interpreted and applied in the context of the bylaw as a whole,” the ruling notes.

Abradjian says there was some debate as different bylaws use the terms ‘naturally and normally incidental’ or ‘customarily incidental.’

“What had developed over the years was a line of cases which held that for accessory use to be ‘customarily incidental,' you needed to have some evidence of similar use on other properties within the province or community,” he says.

“With the ‘naturally and normally’ wording, that requirement for evidence of similar use didn’t seem to exist until a 1995 majority decision of the Divisional Court which was upheld without reasons by the Court of Appeal. There was this interesting issue after that case as to whether there was a requirement of evidence of similar use, depending on what words were used.”

The application judge found requiring evidence would be too restrictive and, in any event, “there was at least some evidence that another greenhouse in Ontario grinds its fuel on site, in addition to evidence (from a website) suggesting that another greenhouse may do so,” the decision states.

Abradjian says what comes out of this case is that if a municipality is choosing between the terms when creating its bylaws, if they wish to be less restrictive with respect to accessory use, then they should choose the term ‘naturally and normally’ incidental.

“It’s an interesting case that way because to a certain extent, it cleared up the law on it,” he adds.

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