COURT FILE NO.: CV-21-00000138
DATE: 2022/02/03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
The Corporation of the City of Belleville
Applicant
– and –
Reid’s Insulating Inc., formerly known as 1745089 Ontario Inc.
Respondent
Jennifer Savini, for the Applicant
Michael J. Pretsell, for the Respondent
HEARD: October 1, 2021
REASONS FOR JUDGMENT
RYAN BELL j.
Overview
[1] Reid’s Insulating Inc., a small insulating contractor, operates its business at the property formed by the consolidation of 407 Farnham Road and 19 Simcoe Drive in Belleville.[^1] The City of Belleville applies for a permanent injunction to enforce its zoning by-law and to prohibit Reid’s from using 407 Farnham Road for (i) the parking and/or storing of truck trailer boxes within the 15 metre setback from the lot line, and (ii) a driveway within 7.5 metres of the boundary of a residential zone. In its notice of application, the City also applied for a permanent injunction to prohibit Reid’s from using 19 Simcoe Drive as a parking lot. However, Reid’s acknowledges that this use is not permitted. Reid’s has not permitted parking since it was advised that parking on 19 Simcoe Drive is in contravention of the zoning by-law.
[2] In relation to the uses of 407 Farnham Road, Reid’s relies on the doctrine of legal non-conforming use.
[3] For the following reasons, I dismiss the application.
Background
[4] The following background facts are from the parties’ statement of agreed facts.
[5] Reid’s, under its former name, purchased 407 Farnham Road from Vreugdenhil Enterprises Ltd. in November 2010. Reid’s acquired 19 Simcoe Drive from Frank Vreugdenhil in 2015.
[6] The City’s zoning by-law 3014 (the “Zoning By-law”) applies to both 407 Farnham Road and 19 Simcoe Drive. The Zoning By-law came into effect in 1987.
[7] 407 Farnham Road is zoned General Industrial (M1). In the M1 Zone, a truck trailer box is a permitted accessory structure for storage purposes provided there is a 15 metre setback from the lot line of a residential zone.
[8] The 15 metre setback for truck trailer boxes was the result of an amendment to the Zoning By-law that came into effect in 2002. There were no residential lots bordering the property when the Zoning By-law was amended that year. The lands to the north and east of 407 Farnham Road were zoned residential in 2003.
[9] There are currently several truck trailer boxes being used for storage on 407 Farnham Road within the 15 metre setback.
[10] In the M1 Zone, no driveway or parking area is permitted within 7.5 metres of the boundary of a residential zone. There is currently a driveway being used on 407 Farnham Road within the 7.5 metre setback.
Legal Framework
[11] Pursuant to s. 34(1) para. 1 of the Planning Act, R.S.O. 1990, c. P.13, a municipality may enact zoning by-laws that restrict a landowner’s use of land.
[12] When a zoning by-law is changed, s. 34(9) of the Planning Act provides for the continuation of uses that were lawfully established under the prior zoning by-law so long as the uses are a continuation of lawful pre-existing uses. Section 34(9)(a) states:
No by-law passed under this section applies,
(a) to prevent the use of any land, building or structure for any purpose prohibited by the by-law if such land, building or structure was lawfully used for such purpose on the day of the passing of the by-law, so long as it continues to be used for that purpose.
[13] The legal non-conforming use doctrine rests on the principle that zoning by-laws which introduce new restrictions on the use of property should not deny landowners their right to use their property in the same manner they did prior to the introduction of those restrictions: Ottawa (City of) v. Capital Parking Inc., 2002 41644 (ON CA), at para. 30.
[14] For the use to be a lawful non-conforming use, the property must have been in lawful use for a certain purpose at the date of the passing of the zoning by-law, and the property must continue to be used for that purpose. The onus rests on the landowner relying on a legal non-conforming use to prove on a balance of probabilities that the use of the lands at the time of the enactment of the zoning by-law was a continuation of a prior lawful use. Whether the use has been interrupted or abandoned is a question of the facts of the particular case: Rock Solid Holdings Inc. v. Lakehead Rural Planning Board, 2017 ONSC 6564; Forbes v. Caledon (Town of), 2021 ONSC 1442.
[15] If the use of the property changes prior to the zoning prohibiting the use, then the exception from the effect of the zoning is lost: Glenelg (Township) v. Davis, (1992) , at paras. 8, 9, and 12. The required continuation of purpose, however, does not mean that the premises must be used for an identical purpose on the relevant date: Rock Solid Holdings, at para. 11.
[16] An intensification of an existing use can terminate an existing legal non-conforming use. In Saint-Romuald (City) v. Olivier, 2001 SCC 57, at para. 34, Binnie J., writing for the majority, set out the factors to be considered in determining whether there has been an intensification of use sufficient to destroy a legal non-conforming use. A landowner “overreaches” if:
(i) the scale or intensity of the activity can be said to bring about a change in the type of use;
(ii) the addition of new activities or the modification of old activities is seen by the court as too remote from the former land use to be entitled to protection; or
(iii) the new or modified activities create undue additional or aggravated problems for the municipality, the local authorities, or the neighbours, compared to the previous activity.
Analysis
(i) The Truck Trailer Boxes
[17] It is agreed that truck trailer boxes are currently being used at 407 Farnham Road for storage within the 15 metre setback. Reid’s began placing truck trailer boxes in that location in 2011.
[18] Based on the evidentiary record, I find that truck trailers and/or storage containers were being used within the 15 metre setback between 2002 (when the Zoning By-law was amended) through 2011. Central to my finding is the evidence of Mr. Vreugdenhil, the former owner of 407 Farnham Road and 19 Simcoe Drive.
[19] From 1975 to 1999, Mr. Vreugdenhil owned the property through his shares in Doef’s Ironworks. From 1999 until the sale to Reid’s in 2010, Mr. Vreugdenhil’s ownership was through his own company, Vreugdenhil Enterprises Inc. At paras. 3 and 4 of his statutory declaration, Mr. Vreugdenhil declares:
The land has been used continuously for outside storage purposes for various industrial uses throughout the period 1975 to 2010. While operating the business, Doef’s Ironworks, the land was used for the business of welding machinery and steel fabricating shop which included outside storage of various steel materials, transport flatbed trucks, and trailers used to store goods used for the steel fabricating business.
When Doef’s Ironworks moved to its new location the land was used to store equipment for Procter and Gamble and Dor-Ann Homes using various 53 foot trailers and other forms of temporary outdoor storage facilities until the property was sold to 1745089 Ontario operated by Delbert Reid.
[20] Attached to Mr. Vreugdenhil’s affidavit is a photograph showing the current location of storage trailers on the property. It is Mr. Vreugdenhil’s evidence that during his ownership of the property from 1975 to 2010, “trailers were regularly stored in that location” and,
[a]s indicated in paragraph 3 of my Statutory Declaration, trucks and flatbeds were regularly parked in that area for storage and for temporary parking purposes over the years that [I] owned the land. There was no time when it was not used for that purpose.
[21] Mr. Vreugdenhil further explains at paras. 6 and 7 of his affidavit:
When I say the area was regularly used, I do not mean that a vehicle was parked there everyday. Doef’s Ironworks did a wide variety of different steel fabrication work and vehicles and equipment would be moved around the yard on a regular basis. The entire yard was used to the property line i[n] each direction at all times while I owned the property. Truck trailers (or sea-cans) are commonly used to store material and were regularly used by us along the property line while the property was used as Doef’s Ironworks.
Further, when Vreugdenhil Enterprises took possession of the property, my business Dor-Ann Homes, together with other projects of mine, used the property for storage for continuing commercial work.
[22] Mr. Vreugdenhil also provided evidence that because the lot “is not that large”, whenever transport trucks – flatbeds or sea-cans – were stored on the property, they were stored along the property line. It is Mr. Vreugdenhil’s evidence that if they had been stored elsewhere, they would have interfered with the businesses being operated on the property.
[23] Mr. Vreugdenhil’s evidence on these matters was not challenged on cross-examination.
[24] A number of satellite images of 407 Farnham Road were included in the record. One of these images – from July 19, 2002 – appears to show storage containers along what is now the lot line of the property. A July 2011 satellite image shows a number of trailers parked along the lot line in the northeast corner of the property. Other images from 2013 to 2020 show trailers parked or stored on the northeast side of the property.
[25] On cross-examination, Samantha Shortt, a by-law enforcement officer for the City, agreed that tractor trailer boxes have been located close to the residential lots and “throughout the years they have come and gone”:
Q. Okay. So you agree that some of them were there prior to 2002, and you suggest they came and went?
A. Yes.
[26] Thomas Deming, a professional planner, confirmed that the industrial use of the property has continued over time, although he noted “multiple changes on the property over the years.” He acknowledged that all such changes are permitted in the M1 Zone.
[27] The City relies on the evidence of two residential neighbours: Mr. Zaffino and Mr. Sheppard. I prefer Mr. Vreugdenhil’s detailed evidence as a longstanding owner of the property. Both Mr. Zaffino and Mr. Sheppard have lived in their respective homes on Simcoe Drive since 2004; they are, therefore, not in a position to testify about storage on 407 Farnham Road prior to that date. Mr. Sheppard’s evidence is that he “does not recall” the prior owner ever parking tractor trailer boxes along the fence. Mr. Zaffino’s evidence is also qualified. He states that the prior owner did not use trailer boxes as a means of storage “from any vantage point from my property.”
[28] The City’s position is that Reid’s has not established truck trailer boxes were used for storage along the northern property line of 407 Farnham Road between 2002 and 2011. The City also asserts that if Reid’s has established the use of truck trailer boxes for storage in that location, the use “clearly ceased” for an extended period of time and is, therefore, not protected under the doctrine of legal non-conforming use.
[29] I disagree. For the reasons I have outlined, I find that truck trailers and/or storage containers were located within the 15 metre setback between 2002 and 2011. I also find, based on Mr. Vreugdenhil’s evidence, that truck trailers or other storage containers were used regularly along the property line during this same period of time. In Mr. Vreugdenhil’s words, “[t]here was no time when it was not used for that purpose.” Truck trailers have continued to be used by Reid’s in this same location since 2011.
[30] I also disagree with the City’s contention that the use has intensified to such a degree that it constitutes a “change in kind”, thereby terminating the existing legal non-conforming use. The evidence establishes that, prior to the enactment of the 2002 amendments to the Zoning By-law, 407 Farnham Road was used as an industrial property. The use by Mr. Vreugdenhil and the use by Reid’s are the same: a general industrial use that utilizes storage containers.
[31] While the expansion of the amount of storage on 407 Farnham Road has increased (from one or two containers to six truck trailers), the uncontradicted evidence is that truck trailers and/or sea-cans have always been used for storage on the property. There has been an expansion of the amount of storage but not an expansion of the activities beyond the scope of those engaged in previously.
[32] Finally, the evidence of community impact is minimal. Although Mr. Zaffino and Mr. Sheppard now complain about the truck trailer boxes, it is not disputed that those same trailer boxes were located on the property for many years without complaint. There is no cogent evidence that the truck trailer boxes are creating undue additional or aggravated problems for the municipality or the neighbours.
[33] In summary, in relation to the truck trailer boxes used for storage on the property within the 15 metre setback, Reid’s has established a legal non-conforming use. I am satisfied that the use has been continuous and that any intensification has not resulted in the termination of the legal non-conforming use.
(ii) The Driveway
[34] There is currently a driveway, located to the north of the building, being used on 407 Farnham Road within the 7.5 metre setback. It is Mr. Reid’s evidence that this driveway has been in use since he purchased the property. He also states that this driveway has been used by by-law enforcement officers, building inspectors, and city officials when they visited the property. It is Mr. Reid’s evidence that immediately upon his taking possession of the property, the fence and gate that were across the north driveway were removed.
[35] Mr. Vreugdenhil also provided evidence in relation to the driveway. He acknowledges that, for a period of time, a landscaper who rented a portion of the premises placed a locked metal gate across the driveway but states that “[w]e were provided a key to that lock and could open it when access was needed.”
[36] At para. 10 of his affidavit, Mr. Vreugdenhil describes the use of the driveway during the period when he was the owner of 407 Farnham Road:
- To the very left of the picture [exhibit C to his affidavit] is the North end of the property where vehicles can be seen leaving the property by a driveway that has always been in existence. During my occupancy of the property, vehicles would enter on the South side of the property in front of Doef’s Ironworks title on the South side of the property, circle around behind the building to pick up or drop off what was necessary and leave out the North side of the property. There has always been level access to Farnham Road into the parking lot of that building from both the North and the South of the building.
[37] On cross-examination, Mr. Vreugdenhil confirmed that although the main entrance to Doef’s Ironworks was on the south side of the building, the steel trucks carrying metal went in one side and out the north side, on a weekly basis. Mr. Vreugdenhil further explained:
Q. And how long did that continue?
A. Twenty-five years.
Q. So you’re saying transport trucks would use that right until the time you sold it to Reid’s Insulating?
A. Yup. There were a couple of years between Reid’s buying it and Doef’s Ironworks went to the new building north of the 401 and so there wasn’t as much traffic and we rented it out to various people in that little period. But then I owned it and instead of [indiscernible]. And then when Reid’s got it, they opened the driveway up again and cleaned up the mess from the nursery guy and I – that’s all that I –.
[38] It is Mr. Vreugdenhil’s evidence that when Doef’s Ironworks owned 407 Farnham Road, the gate on the north side of the property was open all day.
[39] The satellite images in the record show an open driveway, in use, on the north side of the property from 2011 to 2020. Mr. Sheppard’s testimony on cross-examination was consistent with the satellite images: he acknowledged that trucks that enter the property from the south side use the northern driveway to exit. On cross-examination, Mr. Zaffino acknowledged that the satellite images are inconsistent with his recollection that the driveway on the north side of the property was not used before Reid’s purchased the property.
[40] Based on this evidence, I find that a driveway existed and was being used on the north side of 407 Farnham Road at the time the amendments to the Zoning By-law were enacted in 2002.
[41] The City asserts that the use ceased for a period of time around 2009 and 2010 when the landscaping tenant used the area for storage prior to the sale of the property to Reid’s. The City relies on the photographs showing that at this time, the area was gated and grown over. The City says there is no evidence that Mr. Vreugdenhil, the previous owner, intended to continue to use the area as a driveway. The City further argues that if the use did continue, it has intensified and is no longer afforded protection under the doctrine of legal non-conforming use.
[42] Again, I disagree.
[43] Whether the use has been interrupted or abandoned is a question of the facts of the particular case: Forbes, at para. 7, citing Rock Solid Holdings, Elbasiouni v. Brampton (City), 2016 ONSC 8216, O’Sullivan Funeral Homes Ltd. v. Sault Ste. Marie (City), 1961 218 (ON SC), [1961] O.R. 413 (H.C.J.), at para. 13.
[44] The onus is on the property owner to show that the use is continuing: City of Toronto v. San Joaquin Investments Ltd. et al. (1978), 1978 1576 (ON SC), 18 O.R. (2d) 730, at p. 739.
[45] I am satisfied that that there was an intention on the part of Mr. Vreugdenhil to continue to use the northern driveway. At no time was the area blocked off in a manner such that it could not be used as a driveway. To the contrary, the landscaping tenant provided Mr. Vreugdenhil with a key to the lock so that the gate could be opened when access was needed. The driveway use continued with Reid’s acquisition of the property.
[46] I am also satisfied that the use of the driveway has not intensified such that the use is no longer afforded protection as a legal non-conforming use. The driveway is the same as it was under Mr. Vreugdenhil’s ownership. It is being used for the same purpose. No new activities have been added to the use of the driveway. There is no cogent evidence that the driveway is creating additional or aggravated problems for either the City or the neighbours.
Conclusion
[47] The application is dismissed.
[48] In the event the parties are unable to agree on costs of the application, they may make written submissions limited to a maximum of three pages. Reid’s shall deliver its costs submissions by February 17, 2022. The City shall deliver its responding costs submissions by March 3, 2022. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
Ryan Bell J.
Madam Justice Robyn M. Ryan Bell
Released: February 3, 2022
COURT FILE NO.: CV-21-00000138
DATE: 2022/02/03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
The Corporation of the City of Belleville
Applicant
- and -
Reid’s Insulting Inc., formerly known as 1745089 Ontario Inc.
Respondent
REASONS FOR JUDGMENT
Ryan Bell J.
Released: February 3, 2022
[^1]: The PINs for the two properties were consolidated in 2018. For clarity, I have used the municipal addresses of the two properties throughout these Reasons.