ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 53479/12
DATE: 2012-04-18

B E T W E E N:

BETHANY COMMUNITY CHURCH OF ST. CATHARINES

Thomas A. Richardson, for the Applicant

Applicant

• and -

THE CORPORATION OF THE CITY OF ST. CATHARINES

Nicole A. Auty, for the Respondent

Respondent

HEARD: at St. Catharines, April 2, 2012

LOFCHIK J.

REASONS FOR JUDGMENT

[ 1 ] This is an application under Rule 4 of the Rules of Civil Procedure for the interpretation of zoning by-law 84-119 of the Corporation of the City of St. Catharines.

[ 2 ] The applicant, Bethany Community Church of St. Catharines is the owner of lands known municipally as 1388 Third Street Louth, in the City of St. Catharines upon which it operates an existing church.

[ 3 ] It is the intention of Bethany Church to acquire the adjoining lands known municipally as 1370 Third Street Louth, in the City of St. Catharines, which are vacant lands, and to merge these lands with the land that it now owns in order to allow Bethany Church to expand its existing church uses. Bethany Church has submitted to the respondent a proposed plan encompassing both parcels of land indicating the proposed church uses on both parcels. In particular, the proposed passive uses for adjoining lands to be acquired relate to the church, namely landscaping along Third Street Louth, additional parking for the church, five new playing fields and a small covered structure and playing area.

[ 4 ] In these proceedings, Bethany Church seeks a declaration that the lands and premises known municipally as 1370 Third Street Louth in the City of St. Catharines, when merged with the lands of Bethany Community Church at 1388 Third Street Louth, in the City of St. Catharines, may be used by an existing church, namely the Bethany Community Church, for church purposes.

[ 5 ] Bethany Church was previously located within the urban area of the City. With a growing church, Bethany Church needed to purchase lands upon which it is now situate in 1977, and by 1979, construction of the original Bethany Church was completed. At that time the church lands were zoned agricultural pursuant to the respondent’s existing Zoning By-Law No. 70-27. Churches were a permitted use within the agricultural area.

[ 6 ] On April 30 th , 1984, the respondent past a new Zoning By-Law No. 84-119 which superceded the previous by-law. Under this new by-law, both the church lands and the lands sought to be acquired were zoned Agricultural (A), which is the predominant zoning. A permitted use in the agricultural (A) area is “existing churches”. Accordingly, most of the area covered by Zoning By-Law No. 84-119 is zoned agricultural which permits “existing churches”.

[ 7 ] The term “church” is defined in section 4.11 of By-Law 84-119 and “means a building owned by a religious organization used for worship and related religious, philanthropic or social activities, including accessory, rectories, manses, classrooms, dormitories and accessory buildings.

[ 8 ] The term “existing” is defined in section 4.20 of Zoning By-Law No. 84-119 and “means existing on the date of passing of this by-law”.

[ 9 ] The term “accessory use” is defined in section 4.2 of By-Law 84-119 and “means a use customarily, incidental and exclusively devoted to the main use and located on the same lot therewith”.

[ 10 ] The term “main use” is defined in section 4.49 of By-Law 84-119 and means “the principle use of the lot on which the building or structure is located”. Bethany Church is the “main use” of the lands which the church currently owns.

[ 11 ] The term “main building” is defined in section 4.50 of By-Law 84-119 and “means the building in which is carried on the main use for which the building lot is used”. The existing church building is the “main building” on the lot which the church currently owns.

[ 12 ] The term “lot” is defined in section 4.38(II) of By-Law 84-119 and means “a parcel or tract of land…(II) which fronts a public highway and is a separate parcel of land without any adjoining lands being owned by the same owner or owners as of the date of passing of this by-law;” it is undisputed that the land which the church currently owns and the lands which it seeks to acquire are each currently a “lot” as defined above and that they existed as separate lots on the day Zoning By-Law 84-119 was passed.

[ 13 ] Bethany Church has completed four additions to the original church building over the years. The additions to the “existing church” building itself were made to prior to this application and were undertaken without the need for any specific planning approvals from the City beyond amendments to the site plan agreement registered on title. The additions to the church building undertaken did not require planning approvals on the basis that none of the additions sought to expand the “existing church” or add accessory uses went beyond the lands upon which the church existed as of the date of passing of Zoning By-Law 84-119.

[ 14 ] The Corporation of the City of St. Catharines opposes the granting of the declarations sought and argues that the use of the term “existing” to limit permitted “church” use on lands zoned Agricultural in Zoning By-Law 84-119 was purposeful and intended to limited the scope of that permitted use or accessory uses thereto to those lots or lands where “church” uses existed on the day of passing Zoning By-Law No. 84-119.

[ 15 ] Since Zoning By-Law No. 84-119 was passed, the respondent has passed site specific zoning by amending Zoning By-Law No. 84-119 to allow two brand new churches in the area zoned Agricultural. Counsel for Bethany Church argues that as section 4.20 of Zoning By-Law No. 84-119 defines “existing” as existing prior to the passing of Zoning By-Law No. 84-119 (i.e. April 30, 1984) and since the original church was constructed in 1979, Bethany Church existed prior to the passing of Zoning By-Law No. 84-119 and is an “existing church”.

[ 16 ] He argues that under section 6.1 of Zoning By-Law 84-119, the permitted use is that of an “existing church” and there is no limitation that an existing church must be on the lot as it existed at the time of passage of the Zoning By-Law.

[ 17 ] At the time of passing Zoning By-Law No. 84-119, there were no exemptions to allow for existing churches on the lands zoned Agricultural. On June 9 th , 1986, the respondent passed By-Law No. 86-182 amending Zoning By-Law No. 84-119 to provide zoning provisions by way of exemption on Agricultural lands for “churches and schools”.

[ 18 ] At the time By-Law No. 86-182 was passed, Bethany Church made a presentation to the respondent’s council indicating that it intended to expand its uses from the original building. While the respondent did add zoning provisions allowing for “churches and schools” on Agricultural lands, it did not limit such expansion onto adjacent properties.

[ 19 ] Many, if not all the parcels zoned for uses other than Agricultural, were zoned for existing site specific uses. In particular, specific lands located along Fourth Avenue in the City are zoned specifically as Agricultural Commercial (AC). The difference in zoning was to recognize a hardware store and a tractor dealership that pre-existed the passing of Zoning By-Law No. 84-119 that would not be permitted within the Agricultural (A) Zoning.

[ 20 ] As stated above, there was no provision in Zoning By-Law No. 84-119 which provided for site specific exemptions for churches. Churches were not delineated in the same fashion as other non-agricultural uses within areas zoned Agricultural to which Zoning By-Law No. 84-119 applied. Instead an existing church was listed as a permitted use on all lands that are zoned Agricultural (A).

[ 21 ] Counsel for Bethany Church argues that if the lands currently owned by Bethany Church merged with the lands sought to be acquired, the newly merged parcel would become a “lot” within the meaning of the Zoning By-Law.

[ 22 ] Counsel for Bethany Church argues that at the time of passing Zoning By-Law No. 84-119, it is clear that the respondent considered non-agricultural uses that existed prior to the passing of the Zoning By-Law and in order to limit these non-agricultural uses, the respondent proceeded to zone such lands with site specific zoning. This was an indication of the intent of the City to limit expansion of these non-agricultural uses.

[ 23 ] Because lands used by existing churches were treated differently, that is by exempting existing churches from the by-law, the respondent City indicated an intent not to limit the expansion of existing church uses.

Analysis

[ 24 ] It has been held in recent cases that a proper approach to legislative interpretation, including provisions of a municipal by-law, is one that takes into account the words used, the intent of council and the purpose and scheme of the by-law as whole. The Supreme Court has held that the fact that the municipal by-law is in issue rather than a statute, including a by-law which is restrictive of individual rights in the interests of the community, does not alter the approach to be followed in applying the modern principle of interpretation.

Montreal (Ville) v. 2952-1366 Quebec Inc. (2005), 15 M.P.L.R. (4 th ) at para. 10.

[ 25 ] Today there is only one principle or approach, namely the words of an Act are to be read in their entire context in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[ 26 ] In examining the by-law itself, the modern principle requires that the purpose of the legislation as a whole, and the specific provision in question be identified and that the provisions be read in context and harmoniously with the rest of the by-law. Interpretations that are consistent with, or promote the legislative purpose should be adopted, particularly where the meeting of a provision is unclear or ambiguous.

Neighbourhoods of Winfield Limited Partnership v. Death, per Howden J. [2008] O.J. 3298 ; 48 M.P.L.R. (4 th ) 183 .

[ 27 ] The exemption in the by-law appears to apply not to the lot or lands upon which a church existed at the time of passing of the by-law but rather to the building. (see definition of “church” supra). If the intention was to restrict the use of land by an existing church to the lot upon which it stood on the date of passing of By-Law No. 84-119 the by-law could have specifically exempted lots or lands occupied by existing churches. But this was not the wording used. To allow “existing churches” to expand to adjoining lands would in my view not do any great mischief to the purpose and intent of the by-law, which presumably is to preserve agricultural lands. This is not a situation where large tracts of land would be changed from Agricultural uses to residential subdivisions, large shopping centres or industrial uses.

[ 28 ] Other existing non-agricultural uses were dealt with in a different manner than existing churches and existing schools. They were preserved by site specific zoning on the lands on which they existed. Dealing with them in this manner would prevent them from expanding beyond the lands or lots on which they existed when the by-law was passed. Section 6.1 of the by-law does not require that a church exist on a specific lot at the time of passage of the by-law in order to allow use of that lot in connection with an “existing church” today.

[ 29 ] The fact that the respondent City did not zone specific sites for existing churches leaves one to conclude that it did not intend to restrict them to the land on which they stood at the time of the passage of the by-law.

[ 30 ] That new churches are treated differently is shown by the fact that two new churches have been allowed by site specific zoning.

[ 31 ] In the present case I find little assistance from the decisions which purport to indicate the philosophical attitude which a Court should adopt in construing Zoning By-Laws. I find that the by-law clearly seeks to preserve agricultural land while at the same time exempting existing churches, not the lands upon which the church existed, but existing buildings from the provisions of the by-law not by site specific zoning but by a general exemption. This to me does not indicate an intent to limit existing churches to the lots on which they stood at the time of the passage of the by-law.

[ 32 ] Counsel for the respondent City argues that the expansion of the church use is contrary to the Official Plan and Greenbelt plan which are in effect in the City of St. Catharines. Neither the existing Official Plan nor the Greenbelt plan were in existence at the time of passage of By-Law No. 84-119. The argument that the By-Law must be interpreted in a way consistent with the provisions of the official plan or Greenbelt plan must therefore fail.

[ 33 ] In the result, a declaration should issue that the use of lands and premises known as 1370 Third Street Louth, in the City of St. Catharines, when acquired by Bethany Community Church and merged with the lands of Bethany Community Church at 1388 Third Street Louth, in the City of St. Catharines, may be used for an existing church, namely the Bethany Community Church for church purposes.

[ 34 ] The applicant is entitled to its costs of this application. I may be spoken to or provided with written submissions with respect to the scale of costs and the quantum of costs if the parties cannot agree.

LOFCHIK J.

Released: April 18, 2012

COURT FILE NO.: 53479/12
DATE: 2012-04-18

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: BETHANY COMMUNITY CHURCH OF ST. CATHARINES Applicant - and – THE CORPORATION OF THE CITY OF ST. CATHARINES Respondent REASONS FOR JUDGMENT LOFCHIK J. TRL:mg

Released: April 18, 2012