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The general rule in land use planning is that land may not be used in violation of the current planning rules set out in Part 17 of the Municipal Government Act (the “MGA”) and the regulatory framework in Alberta, including the municipality’s statutory plans and Land Use Bylaw.
There is an important exception. The defence of “legal non-conforming use” allows a pre-existing use of land to continue, even though the use no longer complies with current planning rules for that land. Non-conformance arises when a municipality rezones a parcel of land such that the current use no longer falls within the list of permitted or discretionary uses for that parcel or when the municipality amends the development standards that apply to a particular use.
In this way, legal non-conformance is an example of the “grandfathering” principle: the existing use is allowed to continue despite being offside the new rules. If the defence of legal non-conforming use is established, it is a complete defence to enforcement action by the municipality. For example, if the municipality issues a Stop Order to the landowner under s. 645 of the MGA, and the landowner can show their use is a legal non-conforming use, that is a full defence.
Legal non-conforming uses are governed by s. 643 of the MGA. As an exception to the general rule, the person claiming they have a legal non-conforming use will have to show they fall within the scope of the exception as it is set out in the legislation.
To qualify, there must be a “lawful specific use” in place when the zoning rules change – this means that the use in question must have either a) had a permit (if a permit was required) or b) been a use for which no permit was required when it was put in place.
If the non-conforming use is discontinued for six months or longer during the time when the use is non-conforming, the protection of s 643 is lost. Land use is not affected by a change of ownership/tenancy. A purchaser may continue a pre-existing lawful non-conforming use.
Additional regulations apply to legal non-conforming uses and buildings and the failure to stay within those strict requirements will result in the protections afforded to legal non-conforming uses coming to an end. Given the exception is intended to balance evolving planning regulation and the vested rights of developers, the reality is legal non-conforming uses will, in most cases, eventually be phased out.
An example helps to show how these rules work. Imagine a town that wishes to create a new residential neighbourhood in a large undeveloped field within town limits. The area beside the proposed new neighbourhood, however, is currently being used as a campground. “Campground” is a discretionary use for that parcel of land under the town’s Land Use Bylaw, and the owner had been issued a development permit before starting to run the campground.
Hoping to minimize noise and campfire smoke in the new development, Council subsequently re-zones the land on which the campground operates, and removes “campground” as a permitted or discretionary use on that parcel. What happens now?
The answer is the campground may continue to operate: it is a lawful non-conforming use. Any subsequent Stop Order issued by the municipality against the campground directing it to discontinue operations could be successfully defended by the owner, provided the campground could point to some evidence that at the time it started operations, “campground” was a permitted or discretionary use under the Land Use Bylaw and it had a valid development permit for that use.
With that said, to continue operating within the defence, the campground:
- May not discontinue the use of the lands as a “campground” for a period of six months or longer during the time that “campground” is a non-conforming use;
- May not change from “campground” to a different discretionary use entirely. Such a change would require a new permit to be applied for;
- May not construct new buildings on the lot while the non-conforming use continues;
- May not extend or transfer the use of “campground” to any other part of the lands, assuming only a portion of the lot was being used as a campground.
The defence of legal non-conforming use is an important aspect of land use planning law in Alberta. If you or your municipality have questions about a non-conforming use or municipal enforcement action more generally, please reach out to one of the lawyers on our Municipal Law team.