A difficult balance : Acquired rights vs municipal power
In 2013, the Quebec Court of Appeal had the opportunity to settle a decades-old legal debate in municipal law. It handed down an interesting decision in the case of Ville de Terrebonne c. Bibeau1, concerning the issue of acquired rights in municipal zoning. This case highlights the complexities associated with the evolution of municipal by-laws and their impact on long-established uses.
Background to the case : change in zoning
Over the years, René Bibeau, the defendant, acquired six contiguous lots in what is now the city of Terrebonne. At the time, these lots were located on agricultural land. From the outset, Mr. Bibeau kept horses on the property, along with the necessary equipment for their care. However, he never applied for an occupancy permit, as required by municipal by-laws at the time. Since then, the city has amended its by-laws, changing the zoning applicable to the lots in question. Among other things, this zoning does not allow horses on the property. Consequently, the city is seeking to stop Mr. Bibeau’s use of certain lots so that he complies with the new municipal by-laws.
Mr. Bibeau argues that the use he has made of these lots since 1976 is protected by acquired rights. Accordingly, he considers that he is not required to comply with the city’s alleged requirements. For its part, the City of Terrebonne pretends that a use that is claimed to be protected by acquired rights must have been subject to a permit in order to be recognized. Alternatively, since the horses have been moved over the years, this would have resulted in the loss of acquired rights.
Decision of the Superior Court
Before analyzing the facts in dispute, the Court recalls the applicable rules regarding acquired rights.
[28] The conditions required to benefit from acquired rights in relation to a regulatory provision have been known and recognized by the courts for a long time.
“a) Acquired rights only exist where the use in derogation of a rule was lawful before the entry into force of the provisions prohibiting such use.
b) The use must have existed, since the sole intention of the owner or user is not sufficient.
c) The same use must still exist, having continued without significant interruption.
d) Acquired rights benefit the property from which they derive their value. Such rights are not personal but transferable; they follow the property to which they are attached.
e) They cannot be modified in terms of their nature and sometimes in terms of their scope, although derogatory activities may be intensified in certain cases.
f) The mere fact of being the owner is not sufficient; case law recognizes that the City’s tolerance of the illegality of the situation cannot create acquired rights”2.3 (Our translation)
The Superior Court’s judge concluded that the use of the lots was protected by acquired rights since they were all located in an agricultural zone at the time of their acquisition, that the keeping of horses and the buildings necessary for their maintenance were permitted under the municipal by-laws in force at the time, and that the use of the lots had not changed and had not been interrupted, except for the geese that had been introduced on the premises more recently.
Decision of the Court of Appeal
Unsatisfied with the lower court’s decision, the city of Terrebonne appealed to the Quebec Court of Appeal.
[16] It has long been recognized that in order to benefit from acquired rights, use must have complied with the regulations in force at the time it was established.
[17] The appellant no longer disputes that the use established in 1976 complied with By-law No. 479, which allowed the presence of horses and related maintenance structures in rural zone A.B. This is the conclusion reached by the trial judge, and there is no error in this regard. However, the regulation in force at the time required that a permit be obtained for any new use, which was not done[…]. It was only in 1989 that the respondent’s land was rezoned as residential.
[18] The appellant asks us to resolve the ongoing controversy regarding whether the issuance of a permit is a prerequisite to benefit from acquired rights and, if not, what guidelines allow the courts to exercise their discretion and not order demolition or cessation of use.4
After analyzing the case law from recent years, the Court of Appeal concluded that Mr. Bibeau had acquired rights. It emphasized that the use of the lots for keeping horses was in compliance with the regulations in force at the time it was established in 1976. Furthermore, it noted that the use had not been significantly interrupted over the years.
The Court also addressed the issue of the absence of an occupancy permit. Balancing the importance of complying with municipal by-laws and the need to protect established uses in good faith, it recognized that, although an occupancy permit was required at the time, the omission to obtain one did not automatically deprive Mr. Bibeau of his acquired rights.
Key takeaways
This decision is important as it reiterates that acquired rights are an exception to the principle of compliance with zoning by-laws. To benefit from acquired rights, I must be demonstrated that the use was in conformity with the regulations at the time it was established and that it has not been significantly interrupted.
The decision also highlights that the absence of a permit is not always fatal. Courts may consider the particular circumstances of each case to determine whether the failure to obtain a permit should deprive a person of their acquired rights. In this sense, courts have an important role to play in ensuring a balance between compliance with municipal regulations and the protection of acquired rights.
Written with the collaboration of Laury-Ann Bernier, Law Lecturer.
12013 QCCA 587.
2Huot c. L’Ange-Gardien, [1992] R.J.Q. 2404, 2409.
3Terrebonne (Ville de) c. Bibeau, 2011 QCCS 2729, par. 28.
4Terrebonne (Ville de) c. Bibeau, 2013 QCCA 587, par. 16-18.