The appellant municipality sought to terminate what it alleged was an unlawful substitution of one legal non-conforming use for another after a bar formerly featuring country and western entertainment began presenting nude dancers.
The majority held that acquired rights in zoning matters protect the actual pre-existing use, but with some flexibility for reasonable evolution, subject to limits based on change in kind, remoteness from prior activities, and adverse neighbourhood effects.
On the evidence, the respondents’ pre-existing use was properly characterized as a nightclub offering food, drink, ambiance and lawful entertainment, and the change in entertainment format did not create a wholly different use.
The appeal was dismissed and the acquired right to operate the nightclub continued.
