More On The Junction
However, I do not understand what is going on with all of this legal non-confroming use discussion and especially the power of the Cheif Building Official to make the final decision.
I did call a lawyer I knew who does this kind of work and he was unaware of why the CBO can make this final decision. I hope someone at Council can clarify this matter legally. If I am right in my analysis, there is another option that can be presented tonight.
Councillor Gignac's questioning of the CBO at Council suggested to me at least that he did NOT have the full facts about how the building had run dances in the past. Joe McParland's questioning of the CBO afterwards was very telling to me about the Escape Cafe and why certain actions were allowed there but not at the Junction. Based on that alone, Council should have told the CBO to look again at his decision. Certainly the Report could have said that but it did not.
In any event, I wanted to find out what gave the CBO such authority to be the final decision maker but could not find it. If he is NOT the decision maker then Council on Monday night can make the decision and this matter is closed finally other than appeals which you know will happen!
I looked under the Planning Act:
- 34. (1) Zoning by-laws may be passed by the councils of local municipalities:
Excepted lands and buildings
(9) 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;
No mention of the CBO there but only the COUNCIL.. If Council did delegate that authority to determine "non-conforming use" questions to the CBO, where was is it done? And if they did do so , then they can revoke that permission can't they for the Junction!
I checked the City's Official Plan too. The only references I could find re Non-conforming use did not even mention the CBO.
Here is what the Official Plan said about non-conforming uses:
- 184.108.40.206 Certain lawfully existing uses may, by their nature or location, not satisfy or conform to the land use policies or applicable land use designation in this Plan. They may have been established at their location for a long period of time and accepted as such within the neighbourhood or constructed more recently in compliance with the previous zoning. Notwithstanding any other provisions of this Plan in conflict herewith, such uses may be zoned as conforming uses in the zoning by-law provided that:
(a) the use does not constitute a danger, a nuisance or blight to the adjacent neighbourhood by virtue of its function or operational characteristics; and
(b) the extension or enlargement of the use or change in its functionality would not be detrimental to nor pose a nuisance to the adjacent neighbourhood; or
(c) where the use is deemed to be sensitive land use, it shall be part of a viable larger grouping of similar land uses.
Again, no mention of the CBO having any role whatsoever.
Where the specific term "non-conforming use" was used in the Official Plan, the CBO had no role:
- 220.127.116.11 The Committee of Adjustment shall review applications for the extension or enlargement of a building or structure continuing as a non-conforming use.
I did find several sections in the Official Plan where COUNCIL could act immediately to help George too
- 18.104.22.168 Notwithstanding any other provisions of this Plan, where a nonconforming use has been discontinued Council may enact an amendment to the Zoning By-law for a use that otherwise would not be allowed under the provisions of this Plan.
Or how about this section:
- 22.214.171.124 Council may pass by-laws to permit the temporary use of land, buildings or structures for a specified time period for any purpose that is otherwise prohibited by the Zoning Bylaw(s) in accordance with the Planning Act.
I was also interested in what the City Counsel, Mr. Wilkki, had to say about the City suing the CBO if they disagreed with him. He referred to an Ottawa case where that happened. It is unfortunate that he did not mention that the CBO had a specific statutory duty that he was acting under and THAT was the reason why the City had to sue. That is NOT the case with the Junction. All that happens here is that the City listens to what the CBO says and then COUNCIL makes the decision.
The Admin report talks about an Ottawa case as their justification but that case involved the statutory role of the CBO under the Building Code Act, something that does NOT apply here. That is why the City had to sue because of his legal duty:
- Sec 8 (2) The chief building official shall issue a permit referred to in subsection (1) unless...
If I am right and the CBO is NOT the final decision-maker to determine legal non-conforming use (and Council does NOT have to sue him) and George's use, as the Councillors seem to have suggested, meets that definition, then on Monday, Council must do the right thing and grant him an exemption from the By-law as a legal non-conforming use. If not...well I will let Geroge figure out what his next steps are.