By John Francis
A municipal government’s role is to help ratepayers get the most out of their properties. Zoning Bylaws and other regulations are intended to enable rather than restrict. The default setting is that if a proposed use does not contravene the various codes and bylaws, it will be permitted.
This is an important point for all concerned. If you buy a building lot, you are safe in assuming you can build on it, within the limits of applicable restrictions. If you buy a farm lot, you are safe in assuming that you can farm it, within the limits of applicable restrictions.
And so forth. That’s how it’s supposed to work. Permitted Uses may be implemented “as of right”. But life is complicated and many of the Zoning Bylaws and other regulations are written using simple language and generalities, rather than listing every single possible use a property could be put to.
The Zoning Bylaw also includes a list of Prohibited Uses. The final item on the Prohibited Uses list says that any use that is not expressly permitted is prohibited.
The plot thickens…
An ongoing controversy around Tobermory hinges on whether a boat tour dock is a permitted use in the C1 (Commercial) Zone. The “Permitted Uses” for C1 Zone is a relatively short list — 40 items. It includes “Hotel” and “Tourist Home” but not “Motel”. It includes “Eating Establishment” and “Tavern” but not “Restaurant”. That never slowed anybody down in establishing a motel or a restaurant — as of right. They were implicitly permitted uses.
The Permitted Use list includes “Marina” and “Transportation Hub” but not tour boat dock. The question hangs on whether “tour boat dock” is an implied permitted use. I sure thought it was — the ferry dock is in a C1 Zone with no special conditions, so “ferry dock” is obviously a permitted use. But nonetheless — the tour boat dock issue is being expensively litigated.
It used to be that a landowner had the full use of his property — they could do pretty much anything they wanted. Zoning Bylaws have been an exercise in balancing the rights of the landowner against the rights of neighbouring properties and the community at large. Hence the list of “as of right” uses.
Our existing Zoning Bylaw dates to 2002. But that 2002 Zoning Bylaw incorporates the structure and intent of the Zoning Bylaws of the four municipalities that amalgamated into Northern Bruce Peninsula. I mean — they had to, right? They couldn’t change the rules in the middle of the game…
That reluctance to change the rules has been going on since the 19th century when the land was originally surveyed. Our zoning not only predates computers, cell phones and SCUBA diving — it predates the automobile. It predates the Wright Brothers inventing the airplane.
Let that one settle for a moment…
So how does a Zoning Bylaw that has its roots in the 19th century deal with wind turbines, solar panels, cell phone towers and other 21st century paraphernalia? Nervously. On a case-by-case basis. And not particularly well.
Rural zones have a short list of permitted uses, which skew heavily towards agriculture, forestry and home businesses. Agricultural uses are permitted, within limitations, in spite of the fact that they may have an impact on neighbouring properties. Pig barns stink. Anybody who lives downwind of a pig farm will tell you stories about what it’s like on hot summer days. Chicken barns are almost as bad. Cattle farms feature constant bawling and mooing that neighbours can hear 24/7.
To grossly oversimplify, the Zoning Bylaw’s provision for neighbours of agricultural operations is: “Deal With It”.
21st century uses of rural land have expanded beyond crops, flocks and herds. But the 21st century sensibility of “consider the neighbours” pervades our treatment of those new uses.
“Deal With It” isn’t the rule of thumb anymore, except with traditionally “permitted” uses. Anyone who wants to do something different requires a Zoning Bylaw Amendment. There are hoops they have to jump through.
A cell phone tower doesn’t make noise. It doesn’t smell bad, even on hot summer days. It just sits there and blinks its little red light at the top. Oh, and it emits radiation. Ultimately, everything that moves through the air in waves can be defined as radiation, so yes, a cell phone tower emits radiation. Is that radiation harmful? That depends on who you talk to. Regulatory agencies have defined permitted levels. The proponent of the cell phone tower currently being discussed claims that their tower will emit only 2% of what the regulations permit. Opponents of the tower claim that even 2% of the permitted level is harmful and that the prescribed setbacks are inadequate.
Should a municipality accept the environmental standards and regulations established by senior levels of government? If not, whose expertise should be accepted instead? Who would be competent to make such a decision? Who would even be competent to evaluate the arguments of the opposing sides?
How does a cell phone tower compare to the stink of pig barns or the bawling of cattle? Because both pig barns and cattle are “as of right” uses for the property in question.
Ironic, isn’t it? Welcome to the 21st century.
