Allegation That Municipal Official Authorized Unlawful Use is No Defence to Zoning Bylaw Enforcement

The British Columbia Supreme Court recently reconfirmed that local government enforcement of zoning bylaws cannot be curtailed in circumstances where unlawful use might have been authorized by a municipal official and was, at the very least, known to the municipality at the time the unlawful use commenced.

In Corporation of the Township of Esquimalt v. Crosson, 2010 BCSC 1490, the Respondents, Dale Crosson and Nancy Clark, asserted that the use of their investment property, a detached house, as three rental dwelling units, had been authorized many years ago by Esquimalt’s building inspector, prior to the Respondents’ purchase of it.  They argued this approval had been made by Esquimalt despite the fact that Esquimalt’s current and former zoning bylaws limited the use of their residential property to a maximum of two dwelling units.

The Respondents argued that Esquimalt, by allegedly authorizing three dwelling units, had created one of the rare circumstances where the Court should deny it the right to obtain a mandatory injunction from the Court to enforce compliance with the zoning bylaws.  It is important to note that the Court did not make a finding of fact that Esquimalt authorized a third dwelling unit; rather, the Court found that the municipality was at least aware, during renovation of the house into two lawful dwelling units, that a third kitchen was being installed within it.

In arriving at the decision, the Honorable Madam Justice Smith reviewed the applicable zoning bylaws.  In applying a purposive interpretative approach to Esquimalt’s  applicable zoning bylaws, she found that it was “never consistent with the zoning to have three dwelling units in the building”.  This addressed an ancillary argument asserted by the Respondents that the earlier zoning bylaw was more permissive and would have allowed the third kitchen in any circumstance.

In granting Esquimalt the injunctive relief it sought, with costs, Madam Justice Smith stated that:

“… [T]he law is clear that a building inspector cannot amend a zoning bylaw. If the building inspector had authorized the construction of three separate dwelling units (I have found no evidence to support that conclusion), they would have been as non-compliant when they were built as they are today.

[47]  Thus this is not a situation where a use that was consistent with a previous bylaw may remain a non-conforming use when the bylaw changes. It was never consistent with the zoning to have three dwelling units in the building.

[48]  I have come to the conclusion that the petitioner is entitled to the relief it seeks. I do not find that this is one of the rare cases in which the statutory remedy should be refused.”

The Respondents did not make a cross-claim for any damages in misrepresentation from Esquimalt, so that issue was not put before the Court.