QUESTIONS for the County re AUTHORITY for LAND DESIGNATION
The County states under Sec. 34 of the Planning Act, the county may pass a zoning bylaw……
Question #1: Please explain under what Legislation empowers the County/Municipality the absolute authority to pass a zoning bylaw on PRIVATE PROPERTY without the consent of the property owner. When referencing the “comprehensive zoning bylaw” that is interpreted to mean the control over the use of land or structures built on land, please show where it is written that grants this authority.
Question #2: The word “acquired” is referenced throughout the Planning Act (sec 28) and the Municipal Act (sec 10, 11) which appears to mean that once the municipality has “acquired” the land, they can exercise their authority through bylaw or whatever. Definition of “acquire” is to obtain. Therefore, if the municipality has to obtain it, then obviously it doesn’t already belong to them, is this not correct?
We do not want an “implied” assumption. Instead we want to see it written down in black & white in the Legislation where the upper or lower tier municipality have legal authority to enforce regulation on private property without the consent of the property owner. To give you an example of what is meant by “black and white”, refer to Municipal Act Reg 322/12 under Scope of Local Improvement (sec 2) where it clearly states the following:
Scope of local improvement
2. (1) If a municipality has the authority to undertake a work, including a private work, under section 9, 10 or 11 of the Act or under any other provision of any Act, the municipality may undertake the work as a local improvement in accordance with this Regulation. O. Reg. 322/12, s. 3.
(2) The power to undertake a work as a local improvement includes, without limitation, the power to,
(a) undertake the work as a local improvement, including undertaking the work on private property;
(b) acquire an existing work and where it does, this Regulation applies as if the municipality were undertaking the work so acquired;
(c) undertake a work as a local improvement for the benefit of a single lot; and
(d) raise the cost of undertaking a work as a local improvement by imposing special charges, including special charges on a single lot. O. Reg. 322/12, s. 3.
(3) Where a municipality undertakes a private work as a local improvement, this Regulation applies to undertaking the private work as a local improvement as if the municipality were undertaking its own work. O. Reg. 322/12, s. 3.
(4) Nothing in this Regulation authorizes a municipality to enter and undertake a work as a local improvement on private property without the permission of the owner or other person having the authority to grant such permission. O. Reg. 322/12, s. 3.
Looking at the above Regulation, it specifically spells out with respect to a municipality undertaking a work project as a local improvement, they cannot do so unless they get the consent of the private property owner. ---
Question #3: If the upper or lower tier municipality does not have authority as mentioned above, explain where they have authority to designate our Land Use on private property.
Question #4: Also, if a private property owner does not attend a public meeting where the County explains to the public they will designate a certain parcel of land to be wetland or heritage or whatever and that property owner is only given a specified time limit (what is it?) to “appeal the designation”. It is legislatively stated in the Municipal Act, (sec 9) that a municipality has the powers and privileges of a natural person to exercise their authority. Therefore, if that is the case, then how does an upper or lower tier municipality have any more right to decide how land should be designated on private property then the owner of the property himself….as a natural person? And further, how can the municipality justify in dictating the property owner only has a specific time limit to appeal the land designation decision of the municipality….especially when they have no ownership on that parcel of land in the first place?
Further to question #4, we again refer to the legislative statement where the municipality has the powers of a natural person. A natural person is defined as a legal entity for the human being that has the capacity for rights and duties. Therefore, it would seem that a natural person would have to receive the consent of another natural person to either obtain possession or do something with property belonging to the other….would you not agree? Therefore, please explain how a municipality would assume that a group of separate human beings or natural persons being present at a public meeting can give consent to a decision of the municipality on property that belongs neither to them nor to the municipality?
Question #5: If a property owner has a Crown Land Patent Grant (a statutory instrument) for a parcel of land that gives him the sole right of ownership on that land where the Crown has no right, title or interest to it ….. can the County or Municipality still designate that land?
Question #6: An Official Plan is NOT Legislation – it is a policy on how land should be used within the municipality. However, if the county or municipality does not have ownership of ALL the land, then how can they dictate and enforce an Official Plan or policy on private property without the consent of the owner? Which brings us back again to the question of “authority”.