Civil Thoughts Series, No. 18
The Saint Croix Courier (St. Stephen, NB), 144/2, A-5, 14 October 2008
Zoning is a requirement of the province. It is not particularly straight-forward. This can make it is a touch annoying.
In St. Stephen, the zoning by-law deals with the following matters:
- the identification of zone types;
- general provisions for all zones, including frontage, licenses, non-conforming uses, heights, accessory uses, illumination, densities, parking, set-backs, fences, enclosures, etc.;
- specific provisions for specific zones;
- signs; and,
- the powers of the Development Officer (the CAO in St. Stephen’s case), the Planning Advisory Committee (chaired in St. Stephen by Ted Moore), and Council.
Related by-laws deal with building, sub-division, unsightly premises, and noise. Expropriation is governed by provincial statute; property assessment is controlled by the province.
The general provisions for residential zones permit business use of a dwelling under certain conditions (external appearance, residency, quantity of business area, etc.), and identify acceptable home businesses (e.g., professionals, nurseries, caterers, tailors, hairdressers). Incidentally, we do not regulate erotic entrepreneurialism in any restrictive way, although, after a recent flurry about the same in Saint John, one of our councillors proposed its prohibition in all locations except the industrial park. The by-law technically categorizes these as an “amusement place.”
The zoning by-law, by statute, must accompany and be derived from the municipal plan by-law. And the current Council, in St. Stephen, has created a strategic plan to drive the municipal plan. This vastly improves planning at all levels.
Let me illustrate the complexities and frustrations of zoning and re-zoning with a theoretical example of a corner store, Miller’s Corner Variety.
Let us assume that Miller’s Corner Variety is a small convenience store dealing in assorted produce, tinned goods, tobacco, and a great deal of neighbourhood gossip and speculation, that recently would have gone out of business. The regulars, naturally, would have moved over the tundra to newly caffeinated watering holes.
The zoning for its lot is something called NC, neighbourhood commercial. The neighbours’ request is to re-zone to R-1, residential.
The municipal plan designates this lot, and several adjacent lots, as neighbourhood commercial. Council therefore will need to weigh whether in re-zoning the Miller’s Corner Variety lot it should also re-zone the adjacent lots. This will have the effect of removing from the neighbourhood all immediate possibility of any commercial development.
Council should bear in the mind that a developer who may choose to assemble some or all of the lots into a larger parcel would have the right to establish an appropriate commercial enterprise, for example, a small strip loan of small stores specializing in several types of conveniences, such as foodstuffs, baked goods, dry goods, and the like.
Should Council re-zone the adjacent lots, it may limit commercial development but not necessarily preclude that which has existed historically. That is, even were Council to re-zone all lots to R-1, a case could be made for the validity of non-conforming use.
Council will also need to weigh whether the closure of Miller’s Corner Variety’s constitutes permanent abandonment of that commercial enterprise. This may not have been the intent of the business owner. The extinguishment of further commercial use is usually dependent upon its abandonment not only in a real sense but also for a length of time sufficient to establish that commercial resumption is not planned.
Furthermore, the business owner may intend to sell his property, and for this purpose the neighbourhood commercial zoning may be a necessary factor. Any such future owner could not be disqualified from establishing an appropriate commercial operation, and any impediment to do so could be interpreted as an instance of improper purpose, whether of discrimination or of bad faith.
Council will also need to weigh whether the trend of residential properties in the neighbourhood produces a rationale to remove neighbourhood commercial zoning from the neighbourhood. Associated with this is the fact that the re-zoning request is being initiated not by the land-owner but by his neighbours. This situation may not necessarily preclude Council from re-zoning, but will complicate the process, which, of course, requires public notices and hearings, and approval from the minister.
In this regard, it will be necessary to demonstrate that not only have statutory requirements been met but also that all the judicial requirements of procedural fairness have been satisfied.
Council will recall that the imposition of procedural requirements derives from the rules of natural justice. The more prominent of these two procedural requirements are the opportunity for all affected parties to be heard without constraint and the rule that all councillors who vote on the matter have been present for all of the public hearing, including reading of the amendment to the by-law.
Furthermore, it is a fully public process, and in this process members of Council must be able to contend successfully with any allegation of disqualifying bias.
Lastly, recent case law is moving towards the necessity of councils to provide formal, written reasons for a zoning decision.
Council ought also to consider that the land-owner, if aggrieved, may have access to appeal, and such appeal is to a body independent of the municipality. The land-owner may have a strong case that re-zoning to R-1 contradicts the intent of the municipal plan, and that the criteria governing amendment have not or cannot be met.
Council should further bear in mind that appeal may also be initiated by interested or affected citizens other than the land-owner; for instance, commercial developers.
Now, wasn’t that fun?