Zoning Interpretations All Wet

Tony Fleming
Posted July 28, 2015 Category: Businesses

A cottage-country municipality interpreted its zoning by-law to mean that it had no jurisdiction to zone structures located on water such as docks and boat houses. A local cottager was frustrated by this position, especially with respect to the 2000 ft.² two-story floating boat house built by his neighbour. The floating boathouse with a patio above was tethered to the shore above the high water mark, but there was no structure attached to the bed of the lake.

As part of an application to the Court to have the boat house removed, the cottager brought a motion asking the Court to answer five preliminary questions:

  1. Does the Ontario Building Code apply to the construction of structures built over water?
  2. Does a municipality have jurisdiction to zone structures that are built over water?
  3. Did the dock and boat house require a building permit, and must they comply with the zoning by-law?
  4. Is an occupancy permit under the Public Lands Act required from the MNR? and
  5. Is a work permit under the Public Lands Act required from the MNR?

The Court answered all five questions in the affirmative.

The Court cited a number of cases that we have long relied upon to come to the conclusion that municipalities do indeed have the legal authority to enact zoning regulations over water within their municipal boundaries. This is true even where the water is navigable and therefore owned by the Province.

Even though the Province owned the “land” over which the structure was built (the bed of the Lake), the zoning by-law nevertheless applied. It is the user of the lands to which the zoning by-law applies, not the owner of the land. This is an important distinction as the Crown is immune from zoning regulations, but users of Crown land are not.

The Court also found that the Building Code applied to floating structures notwithstanding an argument by the municipality that only an “owner” can apply for a building permit. Although the Crown owned the land (bed of the Lake) this did not immunize the boathouse owner from the requirement for a building permit. The Court found that allowing an owner to evade the application of the Building Code in this fashion would create an absurd result and would not be in the public interest.

The main action has not yet been heard, but this motion will undoubtedly influence the outcome.

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Tony Fleming
Posted July 28, 2015 Category: Businesses

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