CITATION: Fort Erie (Town) v. Favero, 2019 ONCJ 543
DATE: July 26, 2019
COURT FILE No.: Welland: 166140, 166141, 166142, 166143, 166144, 166145, 166146, 166147, 166183, 166184, 166185, 166186,
ONTARIO COURT OF JUSTICE
BETWEEN:
TOWN OF FORT ERIE
___ AND ___
Daniel Favero, Leo Favero, Linda Favero, 2312810 Ontario Inc.
Before Justice of the Peace S. Lancaster
Trial: November 28 & 29, 2018; April 3 & May 2, 2019
Judgement released July 26, 2019
Public Storage Facility & Cargo Containers – Use Not Permitted
Town of Fort Erie By-Law 129-90
S.2.2(a)
T. Hill .........…………...…………….……………………….. Crown Prosecutor
G. Sheppard ……………….………………..…................... Defense Counsel
Reasons for Judgement
[1] S. Lancaster J.P.: The 3 named persons and the numbered Ontario company are charged in relation to 3 Fort Erie properties on 3 separate dates from November 2015 to April 2016 for using land for purposes not permitted: 6 counts: storage of cargo containers; 6 counts: operating a public storage facility, contrary to Section 2.2(a) of the Town of Fort Erie Zoning By-law 129-90 as amended. The properties are noted as: 960 Garrison Road, 974 Garrison Road, and 0 Wellesley Avenue. At the trial outset, the defence filed a motion seeking dismissal of the charges alleging prosecutorial ‘abuse of process’. This motion was dismissed for the reasons noted in my November 28, 2018 judgement.
ISSUE:
[2] The Town of Fort Erie Zoning By-law has been amended over the years as they apply to the subject properties, notably in 1976, 1990 and 2006, and more specifically as they relate to “cargo containers”. The defence agrees to the public storage use and the existence of storage containers on the properties and submits that the use qualifies as ‘legal non-conforming use’. Given this agreed use I will abbreviate the prosecution’s evidence that shows the property use as a storage business.
EVIDENCE:
The court heard from 3 prosecution witnesses, including 1 ‘expert’ witness.
Kira Dolch – Prosecution Witness #1 (qualified as an expert witness for reply evidence)
[3] The court heard from Kira Dolch, Associate Director, Planning and Development Services who testified that the subject properties are zoned Highway Commercial ‘C3’, and have not changed since 1990. She filed the Town of Fort Erie Comprehensive Zoning By-law 129-90 (Exh.5) and outlined the Permitted Uses for this zone (s.20) that does not include “public storage”. By-law No. 57-06 (Exh.6) provided “housekeeping”, amendments to By-law No.129-90 in 2006 adding “cargo containers” as a prohibited use under ss.6.22(a)(xx).
[4] Ms. Dolch noted that she corresponded with the defendant as did her predecessor (Exh.28) and that no applications were received to permit containers on the properties and no information was provided to her about the property’s ‘legal non-conforming use’. She visited the property and observed a number of storage containers noting that the property is promoted by a business sign and advertisement. The property has never been licensed as, nor a building permit issued for, a public storage facility. On cross examination Ms. Dolch noted that cargo containers were added to the By-law as a prohibited use in 2006 as they were a “new phenomenon”. She noted that she did not speak with anyone regarding public storage use during her investigation, relying on public records, business licences and directories. She also agreed that the term “disused” as it relates to cargo containers is not defined and that the intent of the word “disused” is to mean “not used for its intended purpose”.
John Bridgeman – Prosecution Witness #2
[5] The court heard from John Bridgeman, Fort Erie Law Enforcement Officer. He investigated Favero Storage on 960 Garrison Road, attended the property in late 2015 and early 2016 and took photographs (Exh.7-13) of the storage containers holding furniture, boxes and a number of household items and the “Favero Storage” business sign.
Jeff Stephenson – Prosecution Witness #3
[6] The court heard from Jeff Stephenson, Fort Erie Municipal Law Enforcement Officer. He investigated Favero Storage on 960 Garrison Road in 2015 and 2016 observing a number of storage containers, noting 52 “sea containers” with double front doors and 100 plus storage containers with rollover side doors, taking photographs (not provided in court). He observed the business sign “Favero’s Storage” and has seen advertising to take personal goods for storage. Exh.14 & 15 are related property title documents noting the 3 defendants and the numbered company.
Dan Favero – Defendant
[7] The court heard from the defendant Dan Favero who has owned and operated “Favero Storage” in Fort Erie since the spring of 1989 when he acquired 960 Garrison Road, noting he originally rented out the house and used the carport and sheds for storage. He acquired 974 Garrison Road in 1990 from Mr. Putney who had used the property for equipment rentals and storage, using outdoor moveable storage units. Mr. Favero replaced these fiberglass units (shown in Exh.1) with new ones modified with roll up doors within 6-8 weeks of acquiring the property. He acquired the Wellesley Avenue property in 1990 from a Toronto man and purchased 2 cargo containers for storage and had outside storage for cars, boats, campers, Winnebago motor homes, floats, trucks and backhoes. He acquired 982 Garrison Road in 1992.
He marked Exh.3 & 4 photos to show the locations of the storage facilities. Exh.22 (2013 photo) and Exh.23 (2015 photo) show the location of the storage containers. He noted that all properties were used for storage containers before the car wash was built in 1994 that took 2 years during which time 3 containers were removed from the building site and later returned.
[8] On cross examination, Mr. Favero spoke about his proposed Site Plan agreement for a car wash facility prepared by Upper Canada Consultants and agreed no reference was made to his storage business, only an “operating landscaping business”. He has no documents from the town, region or province that support his contention that his property is operating as a “legal non-conforming use”. He also didn’t follow through with getting legal advice regarding “legal non-conforming use” despite reference to this during a previous trial. He noted the law firm he used when acquiring the properties did not provide any “reporting letter” setting out any property limitations.
[9] The prosecution questioned Mr. Favero regarding the newspaper advertisement (Exh.21) dated December 13, 2015 that notes: “NOW OPEN Favero’s Storage Units” (noting the apparent typo re: 906 Garrison Rd); Mr. Favero’s noted that he used “the wrong choice of wording”. He said that the containers would be moved from property to property and increased in number when the car wash was completed. He was advised by the Town (Tom Viola who left the Town in 2008) that he did not require a building permit as the storage units were portable and he believed his property use was compliant as his “legal non-conforming use”.
Gary Van-Luven – Defence Witness 1
[10] The court heard from Gary Van-Luven a contractor who testified that he is familiar with the Garrison Road property. In 1989 he arranged with Dan Favero at 960 Garrison Road to store his household items located behind a small cedar shingle building, including a pool table, kitchen table, sofa and chairs while building his new house. Mr. Van-Luven marked the location of the storage units on Exh.18 sketch. He first approach “Putney” who was unavailable. He couldn’t recall if he observed cargo containers on Favero’s property but he did see the fiberglass storage units on Putney’s property. On cross examination the witness stated that he stored his property for 13 months checking on it regularly. He noted that he has since socialized with Mr. Favero, including dinner but not at his house.
David Aston – Defence Witness 2 (Expert)
[11] The court heard from David Aston, Vice President of MHBC Planning, who outlined his education and professional background in land use planning and zoning By-laws. At MHBC he advises both public and private sector clients regarding local official plans and related applications. Mr. Aston was approved as an Expert Witness for purposes of this trial.
[12] Mr. Aston authored the “Summary Planning Report” (Exh.24) that outlined the “Planning Legislation and Policy Framework”, including the Planning Act, Town of Fort Erie Official Plan, along with Comprehensive Zoning By-laws 57-06 and 129-90. He referred to the Official Plan’s general policy that supports strong, liveable and healthy communities, environmental and public health protection and facilitates economic growth. He noted that the By-laws are to conform to the Official Plan.
[13] He noted that the Favero lands are designated “Highway Commercial” permitting a range of commercial and retail uses with the predominant use to serve and rely heavily upon vehicular traffic for their economic existence. He noted the 2011 Official Plan refocused commercial uses from those that serve the travelling public to those that cater to the needs of tourists. Zoning By-law 590-76 that came into effect in 1976 contained s.7.9 list of Prohibited Uses including “a junk-yard, salvage yard, automobile wrecking yard, or the collection, storage or sale of junk or salvage…” and the specified disused vehicles. “Disused” was not defined and “public storage use” and containers were not included.
[14] By-law 590-76 permitted a range of commercial and retail uses including public garages and public parking and defined “Outside Storage” in relation to Commercial Zones including Mr. Favero’s property that was zoned “C1” at the time. By-law 590-76 was repealed in 1990 and replaced with By-law 129-90 that was further amended in 2006 by prohibiting “cargo containers” while maintaining the qualifier term “disused”.
Phil Connolly – Defence Witness #3
[15] The court heard from Phil Connolly who has spent much of his life in Fort Erie and he is familiar with 982 Garrison Road. As Putney’s store, he rented construction equipment and described the on-site fiberglass storage units with orange doors. He used Favero Storage to store possessions after his father died in 1991 noting a blue coloured bin and a barn structure located where the car wash is now located. He attended to check on his property from time to time recognizing the storage building in Exh.2.
William Gordon – Defence Witness #4
[16] The court heard from William Gordon who has lived his entire life in Fort Erie. He’s familiar with Favero Storage and recalls Putney’s Hardware and storage business. As a contractor he conducted business with Putney although he did not rent storage space. He described Putney’s fiberglass storage pods and containers that appeared in the late 1980s, and rented storage space after the Putney property was sold to Favero.
Mathew Gardiner – Defence Witness #5
[17] The court heard from Mathew Gardiner, a retired RBC stock broker who grew up in Fort Erie living there most of his life apart from moving to Bermuda in July 1989 for work for 2½ years. Upon returning to Fort Erie he moved out of his building and rented storage space at Favero’s Storage “steel buildings” for his furniture and other household items. He also identified a law office next door and a restaurant across the street at the time.
The Law:
Town of Fort Erie Comprehensive By-law No. 590-76 (repealed May 1990)
S.7.9 – Prohibited Uses:
(a) Except as otherwise specifically permitted in this By-law, the following uses are prohibited in any zone:
(16) A junk-yard, automobile wrecking yard, or the collection, storage or sale of junk, salvage, partially or completely dismantled motor vehicle or trailers, or parts of motor vehicles or trailers
(17) locating or storing on any land for the purpose whatsoever any disused railway car, streetcar body, truck body, whether or not the same is situated on a foundation.
Town of Fort Erie Comprehensive Zoning By-Law No. 129-90 (effective May 1990)
s.1.2(b) – Conformity with By-law
No building or structure shall hereafter be erected or altered, nor shall the use of any building, structure or lot hereafter be changed, in whole or in part, except in accordance with the provisions of this By-law.
s.1.2(c) – Existing Uses Continued
Nothing in this By-law shall prevent the use of any lot, building or structure for any purpose prohibited by this By-law if such building or structure was lawfully used for such purpose on the date of passing of this By-law, so long as it continues to be used for that purpose.
Charge section:
s.2.2(a) Every person or corporation who uses or alters the use of any land or uses or alters or erects any building or structure in a manner contrary to any requirements of this By-law or causes or permits a violation is guilty of an offence…
Section 5: Definitions:
s.5.105 “Garage, Public” means a building, other than a private or neighbourhood garage, which is used for the sheltering of motor vehicles.”
s.5.175 “Outside Storage” means the storage of goods in the open air and in unenclosed portions of buildings which are open to the air on the sides.”
Section 6: General Provisions
s.6.22(a) – Prohibited Uses:
(a) Except as otherwise specifically permitted in this By-law, the following uses are prohibited in any zone:
(xix) a junk yard, salvage yard, automobile wrecking yard, or the collection, storage or sale of junk, salvage, partially or completely dismantled motor vehicle or trailers or parts of motor vehicles or trailers.
(xx) locating or storing on any land for any purpose whatsoever any disused railroad car, streetcar body, truck body, or trailer without wheels, whether or not the same is situated on a foundation.
(xxxviii) The use of any vehicle or vehicle body on a lot, including storage therein, except as provided for in Subsection 6.36.
s.6.36 – Temporary Uses:
(a) Nothing in this By-law shall prevent the use of any land, or the erection or use of any temporary building or structure for a construction camp, work camp, tool shed, scaffold or other temporary building or structure for construction work on the premises for which a building permit has been issued…
Section 17: General Provisions For Commercial Zones
s.17.4 – Regulations for Outside Storage in Commercial Zones C2, C3, C5 & C7
Outside storage is permitted in the rear and interior side yard provided they are screened from view from any street and abutting residential zones.
Section 20: C3 Zone – Highway Commercial
s.20.2 – Permitted Uses
(specifies 25 permitted Commercial Uses, not including public storage)
Town of Fort Erie Comprehensive Zoning By-law No. 57-06 (housekeeping)
Amends By-law No. 129-90 – 2006
Schedule A-13; s.6.22(a)(xx)
locating or storing on any land for any purpose whatsoever any disused railroad car, streetcar body, truck body, cargo container or trailer without wheels, whether or not the same is situated on a foundation
[18] The prosecution submits that the defence’s onus has not been met having failed to present evidence of the property’s continuous public storage use to establish “the legal non-conforming use” exception. By-law 129-90 does not list ‘public storage’ as a “Permitted Use” and Exh.28 letter to the defendant notes s.6.22 prohibits cargo containers except where permitted for a temporary use governed by a building permit.
[19] The prosecution further submits that the public storage use did not exist at the time By-law 129-90 was passed in 1990, therefore it could not continue. No Site Plan was entered into and no building permit was issued to permit such use and therefore there cannot be a legal non-conforming use. The evidence fails to support the defence’ contention that the properties were used continuously as a storage facility, noting the following:
• The defendant’s 1991 car wash “Site Plan” building permit application only noted a landscaping business with no reference to public storage.
• The defendant’s “Now Open, Favero’s Storage Unit” advertisement suggests that the storage business opened for business in December 2005
• Exh.3 & 4 (2000 & 2002 aerial photos) are absent of cargo containers that were later shown in Exh.22 & 23 (2013 & 2015)
• Exh.25 business directory for 1990/91 showing “Putney Hardware, Sales and Rentals” shows no reference to storage.
• Mr. Favero didn’t seek legal advice regarding “legal non-conforming use”, and this despite several town letters concerning his property’s non-compliance and threats of legal consequences showing a lack of due diligence.
[20] The defence submits that the evidence shows that the properties were used continuously as a storage facility since Mr. Favero purchased the properties and got into the storage business in early 1989, with the property similarly used by the previous owner. With the 1990 and subsequent By-law amendments the property qualifies for the “legal non-conforming use” exception, noting the following:
• Court heard from the defendant along with 4 citizens who testified that they rented storage space from Favero’s Storage on several occasion in late 1980s and early 1990s.
• Exh.26 & 27 photos of Tim Horton’s “Now Open” sign that followed the store’s renovation shows the sign does not always imply that a new business was opening.
• Exh.3 & 4 aerial photos are snapshots in time and do not account for the movement of the containers.
• Exh.25 business directory lists business names not generally the types of service offered.
• Mr. Favero chose to rely on his understanding that his ongoing use of the storage containers qualify as a ‘legal non-conforming use’ and the former Town employee’s advice that a permit was not required.
• Exh.1 shows the storage units in place at the time the Favero’s purchased the properties, units that were recalled by William Gordon in the early 1990s.
Court Findings:
[21] The onus is on the defence to establish the legal non-conforming property use exception on a balance of probabilities, the civil standard. Over the last 29 years, Fort Erie’s municipal policy and legislative framework governing land use has changed to reflect local priorities, recognizing that change is necessary to “support strong, livable and healthy communities, protect the environment and public health and safety and facilitate economic growth” (Official Plan). S.4.2 of the Official Plan notes, except for detrimental or dangerous uses or those that conflict with provincial legislation, regulation or policies, lawfully established property use before By-law amendments may continue for the same purpose, thereby creating the “legal non-conforming use” exception. By-law 129-90 s.1.2(c) likewise addresses this exception; the use must be continuous. This is fair for parties, such as small businesses, that invest time and money in their ventures. The Faveros have established several businesses serving the public from their Fort Erie properties.
[22] Informations: 166140, 166141, 166142, 166143, 166183, 166185 relate to the “storage of cargo containers”. By-law 129-90 came into effect in1990, with s.6.22(a) prescribing “Prohibited Uses” related to stored items that are qualified by the word “disused”. By-law 57-06 amended By-law 129-90 in June 2006 by including “Cargo Containers” that are likewise qualified by the word “disused”. Defence Exh.16 photo of a derelict truck was filed to exemplify a disused truck body that is not being used for its intended purpose. As both the prosecution and defence evidence shows the cargo containers are indeed used for storage purposes and that they are in fact not “disused” and as such do not fall under the purview of By-law 129-90 prohibited uses. I find the defendants not guilty on these 6 charges and dismiss these charges.
[23] While the focus of this trial is on the legal non-conforming use exception, as a strict liability offence, due diligence applies although as no such defence was proffered I’ll only touch briefly on this point. On cross examination the defendant noted that he did not seek legal advice regarding his legal non-conforming use when he acquired the properties nor did he respond to the Town’s letters regarding his alleged non-compliant use. While this might suggest a lack of due diligence, the defendant was facing several By-law-related charges (2005 – charges withdrawn; 2009/10 – found not guilty at trial; and 2015/16 - charges before this court). He has the right to not engage with the Town regarding the subject of his charges, to exercise his legal right to silence, and to look to the court for adjudication. Mr. Favero noted advice he received from a former Town employee regarding the status of his storage containers although the court heard no supporting evidence. I give this testimony little weight to support a defence of official induced error, although no such defence was proffered. It is noted that Mr. Favero successfully followed the By-law requirements regarding his new car wash business.
[24] The defence presented 4 civilian witnesses all of whom gave clear, consistent and detailed testimony that they rented storage space from the defendant in the late 1980s and early 1990s. I have no reason the doubt the veracity of these witness’ accounts. Some witnesses noted that “Putney’s Hardware Sales & Rental” offered storage services using “sheds” in the late 1980s that would have been prior to the By-law 129-90 amendments. Mr. Aston submits Favero’s storage use does not present any negative impacts or otherwise offend local or provincial policies.
[25] I agree with the prosecution that business records supporting his ongoing storage business would have lent further credence to Mr. Favero’s defence. That said, the passage of 2-3 decades may explain why these records were not proffered. The civilian witnesses testified that Favero Storage was operating in the early 1990s and I cannot infer from the Exh.21 advertisement that “Now Open” means that “Favero Storage” was not in operation prior to December 2005.
[26] The zoning By-laws in effect in 1989/90 are unclear regarding “public storage” per se. The term is not defined nor is it noted as a “Permitted” or “Prohibited” use. “Outside storage” is defined and permitted in all zones with limitations including the defendant’s property. By-law 129-90 “Prohibited Use” is limited to locating or storing “disused” vehicles although “permitting any vehicle, including storage therein” for temporary use (s.6.3). Cargo containers were added in 2006 still being qualified as “disused”. “Public” is defined in relation to building, structure and use to provide services to the public.
[27] The Fort Erie Official Plan and zoning By-laws are to promote strong livable communities, protect public health and facilitate economic growth while permitting a range of commercial activities. Garrison Road is a main arterial roadway lined with commercial businesses serving the public. The focus of the Prohibited Uses in both By-laws 590-76 and 129-90 in relation to the defendant’s properties is substantially the same relating to junk, salvage and disused vehicles. The evidence shows that the defendant’s property has continued to offer a public storage service for 30 years. As the customers pay to store their personal property, some for long periods of time, I suspect that they would not consider it junk.
Judgement:
[28] I find that the defence has met it’s onus in proving their “legal non-conforming use” on a continuous basis since 1990, on a balance of probabilities. I find the defendants not guilty and the 6 remaining charges are dismissed.
Cases consulted re: Legal Non-Conforming Use
Mailloux v. Haldimand (County), 2011 ONSC 845
Ottawa (City) v. Spirak, 2009 ONCJ
Clarington (Municipality) v. Wesseling, 2005 ONCJ 180
Saint-Romuald (Ville) c. Olivier, 2001 SCC
R. v. Free Methodist Church of Canada (Toronto District), 2004 ONCA
Defence Cases:
Mohammed v. Sayer, 2003 OSCJ (Divisional Court) re: legal non-conforming use
White Burgess Langille Inman v. Abbott and Haliburton Co. 2015, SCC re: expert witness
R. v. Livingston, 2017 ONCJ 645 re: expert witness