Urban planning community | #theplannerlife

+ Reply to thread
Results 1 to 11 of 11

Thread: Existing use vs continuing use vs non-conforming use

  1. #1
    Member
    Registered
    Jan 2017
    Location
    Terrace Bay, ON
    Posts
    7

    Existing use vs continuing use vs non-conforming use

    I share a driveway with my neighbour – no easements, nothing, just a flat, unbroken, shared gravel area about 24’ wide between our houses that has been used for access and parking since the 1940’s. The property line equally splits the distance between the houses.

    The current zoning by-law requires a minimum 10’ width for driveways that abut houses and a 3’ setback from a side lot line. So, the way we see it is that under the current rules, each side would need 13’.

    The neighbour proposed to build a garage on his side of the driveway and asked for a minor variance of 1’, so that the side lot line setback would be only 2’.

    We objected. Bottom line, the town approved the variance request. We don’t think that the driveway situation was appropriately considered and would like some advice. (We have no planning experience)

    I have heard the driveway referred to as an existing use, but don’t see this term reflected in either the zoning by-law or the official plan.

    The Zoning By-law contains the following:

    2.3 Continuing Use
    Nothing herein shall prevent the continued use of any land, building, or structure for any purpose prohibited by this By-law provided that:
    a) Such land, building, or structure was legally used for such purpose on the date of passing of this By-law, so long as it continues to be used for that purpose; or
    b) A building permit has been issued and not revoked prior to the date of passing of this By-law, so long as the building or structure, when erected, is used and continues to be used in accordance with the purpose that was provided for in the building permit. Where such a building permit is revoked, the relief provided by this Section shall cease to apply. Such land, building, or structure shall be considered to be a legally non-permitted use.

    2.4 Non-Permitted Use
    2.4.1 Should an existing legally non-permitted building, structure, or use be damaged or destroyed by accidental fire or natural disaster that is beyond the capacity of the owner/occupant to control, nothing shall prevent such building or structure from being restored, repaired, strengthened or reconstructed, provided that the height, size and/or volume of the building are not increased; that the building is reconstructed at its prior location on the lot; and provided further that the use is not altered or changed.

    2.4.2 Except in the case where lands are taken by a public body for public purposes, the size of a legally non-permitted lot shall not be reduced. Where lands are taken by a public body, the residual lot shall not lose its legally non-permitted status through such action.

    2.4.3 E x c e p t as provided for in this Section, so long as any land, building, or structure remains as a legally non-permitted use, none of the relevant zone regulations apply. Use will be limited entirely to those buildings and/or structures as they existed on the date of passing of this By-law, and such alterations as are provided for hereafter in this section, or as are approved by relevant zoning or variance decisions.

    2.4.4 W h e r e a non-permitted use is converted into a legally permitted use or where a non-permitted use has been abandoned or otherwise terminated; all future use of the lands, buildings, and/or structures shall be in accordance with this Bylaw, and any previous legally non-permitted status shall no longer exist. Where such conversion to a permitted use exists, any existing building or structure shall be deemed to be legally non- complying with respect to any discrepancy to any regulation or requirement that is not met at the date of such conversion.
    2.4.5 Nothing herein shall prevent the maintenance, repair, or strengthening of a legally non-permitted use to a safe condition.

    2.4.6 N o t h i n g herein shall prevent the interior of any non-permitted use from being reconstructed or structurally altered for the existing purpose for which the building or structure is being legally utilized.

    2.4.7 W h e r e , in any zone a non-permitted residential use exists, nothing in this bylaw shall prevent the construction of a detached accessory garage to such use provided that all yard and setback requirements are complied with.

    2.5 Long Standing Uses
    2.5.1 Where any land, building, or structure was used at January 1 st , 1980 for a purpose that is permitted in the zone in which it was then located, such use is deemed to have been legally conforming use as at that date.

    2.5.2 Where any land, building, or structure was used at January 1 st, 1980 for a purpose that was not permitted in the zone in which the lands are located, such use is deemed to be a legally non-permitted use as at that date.


    The town’s Official Plan does not speak to existing use either, but it does say:

    8.11 Non-conforming Uses

    A non-conforming use is a use of land that lawfully existed on the date of adoption of any zoning by-law passed under the Planning Act; has continued uninterrupted (or where interrupted, there has been a reasonable attempt to continue the use during the period of discontinuance) and does not conform with the uses permitted in the zone(s) which apply to the subject lands. A non-conforming use may be extended, enlarged or changed to a similar or more compatible use under Section 34(10) or 45(2) of the Planning Act, provided that:

    • It is not reasonable or feasible to cease or relocate the use;
    • Any incompatibility with surrounding land uses is not aggravated;
    • Surrounding uses are protected by appropriate buffers, setbacks and other measures to improve the compatibility of the use;
    • Adequate infrastructure, access and parking are provided;
    • Natural and human-made hazards are addressed, and
    • Development details may be regulated by a development agreement.

    If each of our driveways needs 10’ plus a 3’ setback from the lot line, then the total required for both driveways by the current by-law would be 26’. If the town approves this variance, haven’t they made the incompatibility of the use worse? The town planner says he didn’t even bother to mention the shared driveway in his planning report as it was an existing situation.

    Comments and advice very much appreciated. Thanks

  2. #2
    Cyburbian dvdneal's avatar
    Registered
    Jan 2009
    Location
    Remote command post at local bar
    Posts
    12,478
    These things are never simple, but I'll do my best to help and remember that my advice is meaningless, because I know nothing about the project itself and the local codes. Always talk to your local planner to get better advice.

    It doesn't sound like arguing existing, continuing, etc. use will help much. Planners typically lump that into three classes:
    legal - meets all the codes, doesn't matter when it was built
    legal non-conforming - met the codes when it was built, but codes changed and now it doesn't. All the codes you posted address how to handle one of these uses.
    Illegal - never met the codes. Doesn't seem to be a problem here.

    The house is the primary use and I will assume it is a legal use (meets all the setbacks, etc.) that isn't being altered.
    The driveway sounds like a legal use. The code asks for a 10' driveway and they have it. Even if it's 10' on his side and 10' on your side. Unless there is some kind of setback or rule, it just sounds like the code wants a 10' driveway somewhere on the property.
    The building setback is a different code. It normally applies to building distance to the property line. This doesn't get added to the driveway, unless your code says it should. So 3' from property line to building, the 3' does not apply to the edge of the driveway..
    The garage is the only new thing being done. It sounds like the board gave the neighbor a variance from 3' down to 2' so he can build a garage 2' from your property line. He could be building over his part of the driveway if he wanted. 2' sounds a little close to me, but I'm not your board and they don't care what I think. I like to keep at least 3' to make sure the setback does what it's supposed to do: reduce fire spread, stop storm water from hitting your property, aesthetics, etc.

    In the case of the board they should have been looking for something that is forcing the garage to get closer to the property line. I usually don't like the house as an answer or this is just the best/cheapest way to do it, but each property is unique.

    I would check to see if there is some kind of appeal. These usually have a short (1-2 week) deadline so move fast. Variances typically don't have an appeal. They normally go straight to court. You can consult a lawyer about it, but I hate to say it doesn't sound like a case the court would overturn. It might be different in Canada, but I'm guessing that it's not that much different.
    I don't pretend to understand Brannigan's Law. I merely enforce it.

  3. #3
    Member
    Registered
    Jan 2017
    Location
    Terrace Bay, ON
    Posts
    7
    Hi dvdneal
    Thanks for your response. By your dumbed-down definitions, we have a legal, non-conforming use.

    However, when I read the by-law (Section 2.5 Long Standing Uses), it says:
    2.5.1 Where any land, building, or structure was used at January 1 st , 1980 for a purpose that is permitted in the zone in which it was then located, such use is deemed to have been a legally conforming use as at that date.
    So I think by this, that we had a legal, conforming use, prior to the passing of the new by-law and now it is a legal, non-conforming use. Do I have that right?

    Our current by-law requires all uses, including driveways to have a 3' setback from the side lot line.

    Would you agree that the Official Plan direction of:
    -Any incompatibility with surrounding land uses is not aggravated;
    -Surrounding uses are protected by appropriate buffers, setbacks and other measures to improve the compatibility of the use;
    has not been followed, that the incompatibility has been aggravated.

    We keep getting generalist statements such as:
    -"These houses and driveways were constructed long before this (current) by-law was ever passed. The new by-law tries to capture the existing uses, while setting out guidelines for new build as well. This was and is an existing use and expansion of same."
    -"This is an existing situation that predates planning and zoning controls and where there is an existing situation of a shared driveway access onto a property, the matter becomes a civil matter between neighbours. There is adequate land area on the properties to provide proper access to the proposed garage and to provide adequate parking."
    -"The by-law does not apply retroactively and recognizes that there are non-complying situations."

    The planner did not even mention the shared driveway situation in his Planning Report, a report that would likely have been very influential to the Committee's approval of the variance, because he didn't feel it was required as it was an "existing situation".

  4. #4
    Cyburbian
    Registered
    Aug 2015
    Location
    So Cal
    Posts
    26
    I think you should sketch an existing and proposed site plan of the situation.

    It sounds like you have a 20'-0" amount of gravel area where 10'-0" is equally on each side of your properties.

    The neighbor wants build a detached garage which means that driveway has to be reconfigured to the current code? The driveway reconfiguration seems like a waste of time and resources, but whatever.

    So now instead of a 20'-0" amount of continuous gravel it's 10'-0", a two foot buffer space, the property line, then 10'-0" of gravel on your property?

    What are you objecting about? That the neighbor should set his driveway back another foot from the side lot line, or that he should not be forced to break up your shared driveway?


    Also, there's something that doesn't make sense. If the code says (bolded emphasis mine): "The current zoning by-law requires a minimum 10’ width for driveways that abut houses and a 3’ setback from a side lot line." How is the neighbor shifting the driveway 2'-0" when it's already abutting the house? Is there a definition of abutting that I don't know about? Or is this a building setback issue and not a paving setback issue? An existing and proposed site plan would help clear this up.

  5. #5
    Cyburbian dw914er's avatar
    Registered
    Oct 2009
    Location
    Southern California
    Posts
    1,287
    Here are my $.02 based on the information provided; the same disclaimer for dvdneal applies here.

    Quote Originally posted by Norm Nuthatch View post
    I share a driveway with my neighbour – no easements, nothing, just a flat, unbroken, shared gravel area about 24’ wide between our houses that has been used for access and parking since the 1940’s. The property line equally splits the distance between the houses.

    The current zoning by-law requires a minimum 10’ width for driveways that abut houses and a 3’ setback from a side lot line. So, the way we see it is that under the current rules, each side would need 13’.
    I do not follow the relevance of the 13 feet detail. Basically, per your code, if you were to construct a new driveway that met the code requirements, the furthest most edge of the concrete or asphalt concrete would be 13 feet from the PL. The more relevant point is that driveway and its apron would be 3 feet from PL, if you were to do it today. As noted above, it sounds that both of your driveways would be nonconforming with your existing development code. Given that you both have at least the 10 feet on each respective side, I do not see any need for an easement since parking access is provided wholly within each respective property.

    Quote Originally posted by Norm Nuthatch View post
    The neighbour proposed to build a garage on his side of the driveway and asked for a minor variance of 1’, so that the side lot line setback would be only 2’.
    It sounds like this the only change proposed... Is this the point of contention?

    Quote Originally posted by Norm Nuthatch View post
    I have heard the driveway referred to as an existing use, but don’t see this term reflected in either the zoning by-law or the official plan.

    If each of our driveways needs 10’ plus a 3’ setback from the lot line, then the total required for both driveways by the current by-law would be 26’. If the town approves this variance, haven’t they made the incompatibility of the use worse?
    As part of the District's development standards, your driveway is nonconforming. However, each side still has 10 feet wholly within each property, providing necessary access for offstreet parking. If the driveway was at 0 feet from property line, I do not see how the garage made it worse.

    Quote Originally posted by Norm Nuthatch View post
    Would you agree that the Official Plan direction of:
    -Any incompatibility with surrounding land uses is not aggravated;
    -Surrounding uses are protected by appropriate buffers, setbacks and other measures to improve the compatibility of the use;
    has not been followed, that the incompatibility has been aggravated.

    We keep getting generalist statements such as:
    -"These houses and driveways were constructed long before this (current) by-law was ever passed. The new by-law tries to capture the existing uses, while setting out guidelines for new build as well. This was and is an existing use and expansion of same."
    -"This is an existing situation that predates planning and zoning controls and where there is an existing situation of a shared driveway access onto a property, the matter becomes a civil matter between neighbours. There is adequate land area on the properties to provide proper access to the proposed garage and to provide adequate parking."
    -"The by-law does not apply retroactively and recognizes that there are non-complying situations."

    The planner did not even mention the shared driveway situation in his Planning Report, a report that would likely have been very influential to the Committee's approval of the variance, because he didn't feel it was required as it was an "existing situation".
    I think most applicants would use the existing driveway location as a reason to justify the variance for the garage. Their physical offstreet parking access is already there, and they have designed the garage location based upon an existing physical condition. When I worked in a town with an older housing stock (and many designated historic homes), variances for the placement of a detached structures within the side yard setback was the most common given the development pattern of those neighborhoods... garages simply were not a key component at the time. In those cases, the garages were located behind the house to not alter the streetscape.
    And that concludes staff’s presentation...

  6. #6
    Cyburbian dvdneal's avatar
    Registered
    Jan 2009
    Location
    Remote command post at local bar
    Posts
    12,478
    Quote Originally posted by Norm Nuthatch View post
    Hi dvdneal
    Thanks for your response. By your dumbed-down definitions, we have a legal, non-conforming use.

    However, when I read the by-law (Section 2.5 Long Standing Uses), it says:
    2.5.1 Where any land, building, or structure was used at January 1 st , 1980 for a purpose that is permitted in the zone in which it was then located, such use is deemed to have been a legally conforming use as at that date.
    So I think by this, that we had a legal, conforming use, prior to the passing of the new by-law and now it is a legal, non-conforming use. Do I have that right?

    It's hard to respond on some of this because it's not the code I work with and every code is subtly different, but I don't think the long standing use is relevant. That typically refers to zoning use categories and allowing them to continue. A house in a commercial zone, a business in a residential zone, etc.

    Our current by-law requires all uses, including driveways to have a 3' setback from the side lot line.

    It sounds like the driveway might - I have to say might, because I know nothing on the case - be legal non-conforming. That would typically mean if the driveway is destroyed it must be rebuilt to code. Also the driveway can't become more nonconforming. Since the size of the driveway is not being altered it's not becoming more nonconforming and since the driveway is not being altered - assuming this - there is no reason for the city to force it to become legal. Granted the driveway may now be more difficult to make conforming in the future, but that will likely not happen.

    Would you agree that the Official Plan direction of:
    -Any incompatibility with surrounding land uses is not aggravated;

    The use is compatible, that's not the problem.

    -Surrounding uses are protected by appropriate buffers, setbacks and other measures to improve the compatibility of the use;
    has not been followed, that the incompatibility has been aggravated.

    This would be the problem to me, but what specifically is the protection required? As a planner my first concern about anything near the edge of the property is spread of fire and storm water control.


    We keep getting generalist statements such as:
    -"These houses and driveways were constructed long before this (current) by-law was ever passed. The new by-law tries to capture the existing uses, while setting out guidelines for new build as well. This was and is an existing use and expansion of same."
    -"This is an existing situation that predates planning and zoning controls and where there is an existing situation of a shared driveway access onto a property, the matter becomes a civil matter between neighbours. There is adequate land area on the properties to provide proper access to the proposed garage and to provide adequate parking."
    -"The by-law does not apply retroactively and recognizes that there are non-complying situations."

    The planner did not even mention the shared driveway situation in his Planning Report, a report that would likely have been very influential to the Committee's approval of the variance, because he didn't feel it was required as it was an "existing situation".
    What is all comes down to is showing the board how this will damage your property or cause a problem. Remember they are trying to balance your needs with your neighbor's needs and they never make everyone happy. When they get cases like this they will most often look at the driveway and just take into account that it has always been that way so why bother changing it. They just try to work with the hand they're dealt. Sorry, it would annoy me if my neighbor put something too close to the property line, but I just don't think there is a winning argument here.
    I don't pretend to understand Brannigan's Law. I merely enforce it.

  7. #7
    Cyburbian AG74683's avatar
    Registered
    Jun 2011
    Location
    The Woods
    Posts
    4,790
    Quote Originally posted by dvdneal View post
    What is all comes down to is showing the board how this will damage your property or cause a problem. Remember they are trying to balance your needs with your neighbor's needs and they never make everyone happy. When they get cases like this they will most often look at the driveway and just take into account that it has always been that way so why bother changing it. They just try to work with the hand they're dealt. Sorry, it would annoy me if my neighbor put something too close to the property line, but I just don't think there is a winning argument here.
    This is the key point. And you most likely needed to present this evidence at the hearing. Submitting it after the fact won't change a thing. In most states, variances are evidence based, meaning you need to submit actual certified evidence into the record for the Board to make their decision on. Simply stating "I don't like it" or "It'll hurt my property values" is usually not enough in the eyes of the court. You need to PROVE it. You didn't state really how you voiced your objection...

    *Disclaimer - I AM NOT AN ATTORNEY* - In most places, a variance appeal goes directly to the court. The best case scenario you could possibly get at this point is enter new evidence during the appeal hearing and hope that a judge remands the case case back to the Board based on the new evidence but that's probably a long shot. At this point, it's really irrelevant what the code says, your opportunity to submit proof that the case does not meet the standards of the ordinance and thus sway the Board's decision has ended. If you choose to appeal the variance, I would strongly recommend you retain the services of an attorney to help you through the process, and try and seek out an attorney who's reasonably well versed in land use law for your state. In my experience, most judges in the appeals circuit (hell, most judges in general) aren't well versed with land use regulations, and you'll basically be showing them exactly where the board erred in their decision.

  8. #8
    Member
    Registered
    Jan 2017
    Location
    Terrace Bay, ON
    Posts
    7
    Hi
    Thanks to all for your responses and advice.
    Below is a sketch of the property that may answer any grey areas.

    I guess our take on this is that staring out our kitchen window into a garage is not nearly as nice as having a wide open driveway. Our house is about 8' further back from the street so the garage is a big visual impact.
    We feel that the planner should have clearly articulated that the current by-law requirements were already compromised in his planning report for the committee's review, and that he should have addressed how the surrounding land uses are protected by appropriate buffers, setbacks and other measures to improve the compatibility of the use. If they are not meeting the minimum standards specified in the by-law, it is hard to envision how the compatibility has been improved.

    Regardless, I get the sense that this is a lost cause.
    Thanks for your assistance.
    Norm



    Scan of Proposed Garage Site.pdf

  9. #9
    Cyburbian AG74683's avatar
    Registered
    Jun 2011
    Location
    The Woods
    Posts
    4,790
    Quote Originally posted by Norm Nuthatch View post
    Hi
    Thanks to all for your responses and advice.
    Below is a sketch of the property that may answer any grey areas.

    I guess our take on this is that staring out our kitchen window into a garage is not nearly as nice as having a wide open driveway. Our house is about 8' further back from the street so the garage is a big visual impact.
    We feel that the planner should have clearly articulated that the current by-law requirements were already compromised in his planning report for the committee's review, and that he should have addressed how the surrounding land uses are protected by appropriate buffers, setbacks and other measures to improve the compatibility of the use. If they are not meeting the minimum standards specified in the by-law, it is hard to envision how the compatibility has been improved.

    Regardless, I get the sense that this is a lost cause.
    Thanks for your assistance.
    Norm

    Attachment 5769
    FWIW, I probably would have recommended against the variance in my jurisdiction. I'd have recommended the garage be turned 90 degrees with the doors facing the side property line. At least on paper, I see no land based hardship that would preclude locating this structure anywhere else. I don't know how far from the rear property line the structure would be if it was turned, but IMO it looks like the only probable "injury" , at least on paper, is to you. Variances, which generally have clearly dictated standards for approval, are still very much a local decision and many jurisdictions take a "come sue me" approach when approving ones that aren't really the best fit.

  10. #10
    Cyburbian dw914er's avatar
    Registered
    Oct 2009
    Location
    Southern California
    Posts
    1,287
    Quote Originally posted by AG74683 View post
    FWIW, I probably would have recommended against the variance in my jurisdiction. I'd have recommended the garage be turned 90 degrees with the doors facing the side property line.
    If they hypothetically aligned the garage with the house, there would only be 12 feet of space to make that maneuver... that would be really tight. The proposed alignment essentially allows for a single garage door to fit, and it appears their storage area is to the right. Additional details on the yard details and dimensions would help to see if other ideas are possible, but at first blush, I understand the neighbor's design.
    And that concludes staff’s presentation...

  11. #11
    Member
    Registered
    Jan 2017
    Location
    Terrace Bay, ON
    Posts
    7
    You are correct in that the proposed alignment allows for a single garage door to fit.

    Thanks all for your comments and advice.

+ Reply to thread

More at Cyburbia

  1. Replies: 7
    Last post: 13 Dec 2017, 12:22 PM
  2. Replies: 15
    Last post: 04 Dec 2009, 1:21 PM
  3. Continuing Education
    Career Development and Advice
    Replies: 2
    Last post: 16 Jun 2009, 12:50 PM
  4. Replies: 3
    Last post: 21 Apr 2008, 4:32 PM
  5. Replies: 54
    Last post: 09 Nov 2006, 3:39 PM