A commercial building owner complained to the Ombudsman de Montréal because his borough refused to recognize the acquired rights he was convinced he had, regarding the activities that could be practiced in the premises that he leases. The facts are relatively simple:
- From November 15, 2002 until June 30, 2004, this owner was leasing the premises to a person who operated an automobile repair shop, in compliance with the zoning by-laws in force at the time
- On June 30, 2004, this business ceased its occupation of the premises
- The owner immediately started to look for another lessee to engage in the same kind of activity, in the same location
- On September 23, 2004, while the premises were still vacant, the borough modified its zoning by-laws limiting commercial and industrial activities permitted in this sector: automobile repair shops were no longer permitted in this zone
- These zoning modifications aim to promote residential development in the sector concerned, by limiting certain commercial activities susceptible of being detrimental to the quality of life of eventual residents
- In early November 2004, the owner found a new lessee interested in operating an automobile repair shop in his premises
- But, when this lessee asked for his municipal permit, the borough informed him that this commercial activity was no longer permitted and that, consequently, the request for a permit was denied
- The citizen took numerous steps with public employees and elected officials, to try and have his acquired right recognized to lease the premises for the operation of an automobile repair shop, but all of his efforts failed
- The citizen, therefore, requested the Ombudsman de Montréal assistance.
She then submitted to the borough, a notice in which she Recommended that acquired rights be recognized to the owner of these premises. This conclusion was based on the fact that the activity of automobile repair had been legally operated before the modification to the zoning by-law and also because, after the departure of the previous lessee, the owner had quickly started searching for a new lessee to pursue the same kind of activity. There was, therefore, no indication from the owner of an intention to waive his acquired right to lease the premises for the purpose of operating an automobile repair shop.
Following her intervention, the borough requested a legal opinion from the Direction du contentieux.
This action from the borough was taken in good faith. Indeed, we can understand that the acknowledgement of certain acquired rights regarding activities deemed incompatible with the neighborhood’s new plan of residential development could evoke reservations, at least, in the beginning.
After receiving this legal opinion, the director of the Borough confirmed that he accepted the Ombudsman de Montréal conclusions and that the borough would recognize the acquired rights of the owner to lease these premises for the purpose of operating an automobile repair shop.
However, we have informed the owner that these acquired rights are not eternal and that according to the zoning by-laws, it is imperative that he actually exercises them, before the expiration of a 12-month period. The borough however accepted that this 12-month period starts only from the date when the acquired rights were finally recognized, thus, November 7, 2005.
In other words, if these premises are not actually operated as an automobile repair shop before November 6, 2006, neither the citizen nor any lessee will be permitted to start such activities, in these premises.
We also reminded the owner that other commercial practices remained authorized by the modified zoning by-laws and that, consequently, it could be cautious to also explore the possibility of leasing his premises for one of these other practices.
