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<< back to all ArticlesUser vs. Use: Navigating Proper Planning Principles in Land Use Decisions
In certain circumstances, subdivision and development authorities may be tempted to consider an applicant’s character or personal circumstances for subdivision and development in determining whether to grant or deny an application. This is rarely, if ever, going to be a legitimate or proper planning consideration as planning decisions should be made based on the proposed use, rather than the proposed user.
The “user versus use” principle means that planning decisions should not be based on irrelevant considerations such as the amount of money expended by an applicant in trying to obtain an approval, or an applicant’s charitable contributions to the community. These principles are generally well accepted. However, the distinction between a proposed use and the user(s) of a proposed development is not always so clear, especially when the proposed development’s user(s) may impact areas such as infrastructure and municipal services.
Section 640(8) of the Municipal Government Act expressly provides that a municipality’s authority to pass a land use bylaw is subject to restriction:
Despite this section or any other provision of this Act, the authority to pass a land use bylaw does not include the authority to pass a bylaw in respect of the use of a building or part of a building for residential purposes that has the effect of distinguishing between any individuals on the basis of whether they are related or unrelated to each other.
This would prevent a municipality from enacting a land use bylaw that defined a use class, such as single-family residential, with reference to whether or not the individuals residing in the residence were related to one another. This is consistent with the Supreme Court of Canada’s 1979 decision in R v Bell, which set aside a bylaw which purported to define “family” as a group or related persons and regulated single-family residences accordingly. The Supreme Court of Canada determined that there was no reasonable basis to distinguish between persons living together on the basis of whether they were related by blood, marriage or adoption.
Alcoholism Foundation of Manitoba v. Winnipeg is another example of a decision regarding “user versus use” or “people zoning” as referred to the Manitoba Court of Appeal. The applicant challenged a number of provisions in the City of Winnipeg’s bylaws on the basis that they were discriminatory and contrary to s. 15 of the Canadian Charter of Rights and Freedoms.
The impugned provisions enacted zoning regulations in relation to group homes for:
- the aged, convalescent or disabled persons;
- inmates discharged from penal institutions or in transit waiting for full release, and;
- persons recovering from alcohol or drug addiction.
The argument before the Court of Appeal was that there was no lawful basis for distinguishing group homes from other residential uses based on the personal characteristics of residents. The Court of Appeal agreed, finding that it was unacceptable “to prohibit a use of land with reference to the attributes of those who may use it, at least where the attributes are those which distinguish members of a disadvantaged group and where there is no evidence to show that such a prohibition is one which can be demonstrably justified as reasonable in a free and democratic society” (para. 65). The bylaw provisions were set aside on this basis.
This does not mean, however, that a development’s proposed users will never be a legitimate planning consideration. Land use bylaws and regulations, by their nature, inherently distinguish between different uses and development of land. This is acceptable so long as distinctions are based on legitimate planning considerations, and are not discriminatory in the sense of imposing distinctions based on improper considerations.
For example, a supportive housing facility which employs a number of individuals to provide assistance or services to its residents can reasonably be expected to generate more traffic and parking requirements than a traditional residential development with an equivalent number of units. Affordable housing projects designed with higher density may generate increased demands on municipal services and infrastructure compared to lower density residential development. The use of a dwelling unit as a short-term vacation rental may not be consistent with surrounding land uses in a predominantly residential land use district. These are situations in which the subdivision and development authority may consider imposing conditions or rejecting an application because of the type of user that the use anticipates, which would be improper. If the planning authority focuses more particularly on the actual impact of the use, considering factors like traffic, parking, municipal services, infrastructure, and safety, it can take steps to appropriately address the use as opposed to making a decision directed at the user. In deciding whether the “user versus use” principle is engaged, a municipality must turn its mind to whether the distinctions it seeks to impose are reasonable and based on legitimate planning considerations. Where there is no meaningful distinction between the use of land or a development by different user groups, no distinction should be imposed in a municipality’s land use bylaw.
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This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.
