Tuesday June 30, 2015

Municipal Zoning: It is better to ask for permission rather than forgiveness

Authored by: Andrew P. Nicol Posted in: Real Estate

You are on the hunt for a new home and as you are looking at listings, you come across several that have a separate suite. This suite might be in the basement, or it might be an addition to the home. It has its own entrance, kitchen, and washroom. These suites are commonly referred to as in-law suites. The listing might mention this in-law suite as being potential rental income to help out with the mortgage, or it may be advertised as ideal for aging parents or for that child who is not quite ready to leave the family home.

Although the thought of acquiring a property with an in-law suite sounds great, you need to know if the municipal zoning requirements for that property allow for two units, before you purchase the property. Across Nova Scotia, each municipality is responsible for making and enforcing zoning requirements. These zoning requirements are found in land use by-laws.

HRM: Amalgamation and Residential Zoning

For this article, I am going to focus on the Halifax Regional Municipality (HRM), as it has some unique challenges when it comes to zoning. Now you may be thinking, that because the HRM is one municipality there is only one land use by-law to look at to determine the zoning requirements for a piece of property. While that would make matters simpler, there are currently twenty-one different community plan areas in the HRM, each with its own land use by-law (some have more than one). 

The first thing you will need to determine is which community plan applies to the property which you are interested in purchasing. Once you have done that, you will be able to determine which land use by-law applies. This is important for two main reasons:

HRM: Residential Zones

Each land use by-law will list all the different zones, and each zone will set out the permitted uses for the land in that zone. These uses can be for residential, commercial, or industrial use to name a few. For example, the land use by-law for Dartmouth has over thirty zones.

Generally, but not always, zones that are designated for residential use will start with the letter “R” for residential. Following the “R” will usually be a number. The rule of thumb is that the lower the number, the more restricted the use of the land in that zone. So R-1 would be the most restricted zone. Typically, as the number increases it incorporates the permitted uses of land in the zones with smaller numbers. Again, using Dartmouth’s land use by-law as an example, R-2 allows all permitted uses of land set out in R-1 plus additional uses that are specific to R-2.

HRM: Permitted Use

Let’s look a little more closely at the Dartmouth land use by-law. The R-1 zone permitted uses are found at s. 32(1). There are several uses listed there, but the one we are interested in is s. 32(1)(a), which says,

        32(1) The following uses only shall be permitted in an R-1Zone [sic]:
                
(a) Single family dwellings;

Only single family dwellings will be allowed in an R-1 zone. The Dartmouth land use by-law contains definitions for what compromises a single family dwelling. Three definitions are important in determining what a single family dwelling is, and they are found in s. 1:

Let’s take another look at our hypothetical in-law suite, which as we discussed had its own entrance, kitchen, and washroom. It would not be permitted in a R-1 zone under Dartmouth’s land use by-law. The in-law suite would meet the definition of a dwelling unit in that it is “capable of being occupied as an independent and separate housekeeping establishment.” It does not matter if you intend it to be used by only a family member because family is defined as a group of persons “residing in one dwelling unit.” As soon as you have a separate dwelling unit, as our hypothetical in-law suite would be, you would not meet the definition of a family. Even if the person was your parent or child, the definition of family requires the group of persons to be “residing in one dwelling unit.”

It is important to note that the permitted uses of R-1 (or any zone) can vary from by-law to by-law. For example, under the Lawrencetown land use-by law, R-1 allows for “auxiliary dwelling units.” That by-law defines an “auxiliary dwelling unit” under s. 2.18(d) as follows:

        Dwelling, Auxiliary means a self contained dwelling unit within a single unit dwelling in which       unrestricted access can be gained through the main dwelling unit, and which comprises less than thirty-five (35) percent of the gross floor area of the single unit dwelling.

If our hypothetical in-law suite was located in Lawrencetown and met the requirements for an auxiliary suite, it would be a permitted use in the R-1 zone under the Lawrencetown land use by-law. The same in-law suite would not be permissible in Dartmouth under that land use by-law’s permitted use in the R-1 zone.

HRM: Illegal Use

So what happens if you have a property that does not comply with the permitted uses for which it is zoned? If our hypothetical in-law suite is only in a single family use zone it would be an illegal use. If the HRM finds out that a property is being used for purposes for which it is not zoned, it will issue an order that the property owner restore the property to its proper permitted use.

Complying with this order could be quite costly for a couple of reasons. First, the property owner must take whatever steps are necessary to restore the property to its permitted use. If this were an in-law suite, this could involve tearing out the kitchen and perhaps creating internal access between what were separate dwelling units. If there is a separate power meter, it will most likely have to be removed. Second, if the property owner received income from that unit, this income would no longer be available to the property owner. This financial loss can be quite devastating, as many people depend on rental income to cover costs of a mortgage.

If you are looking to buy a property, a lawyer can help you determine if the property can be legally used in the way that the seller has been using it. A lawyer can also help if you plan on using a property differently from its current use. If you already own a property and are concerned that its use does not comply with the zoning requirements, a lawyer can also be of assistance. There are several ways a lawyer may be able to assist if you find yourself in any of those situations:

Whatever your situation, when it comes to municipal zoning, it is always better to ask for permission than to ask for forgiveness. The municipality is not forgiving when they find out that a property is not being used in accordance with the zoning requirements, even if the property owner did not create the illegal use. 

Connect with a member of our team today. To contact a member of our Real Estate team call us at 902-469-9500 or 1-866-339-3400.

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