An essential function of municipalities is enforcing zoning bylaws. Zoning bylaws allow municipalities to regulate and develop land within their control. Consistently enforcing zoning bylaws promotes the health, safety and general welfare of inhabitants.
The process to enforce zoning bylaws in Saskatchewan is set out in s. 242 of The Planning and Development Act, 2007, SS 2007, c P-13.2 (the “PDA”).
In order to ensure compliance with the PDA, it is important that the municipality’s Development Officer follow the steps set out below:
Step 1: Request the Occupant’s Consent to Inspect the Property if Necessary
If there are reasonable grounds to believe a development contravenes the Zoning Bylaw, the Development Officer may inspect the property. In some cases, the Development Officer may observe a contravention by visual inspection without entering the property. However, if it is necessary to enter the property to carry out an inspection, ss. 242(1) of the PDA provides that the Development Officer must first obtain the occupant’s consent.
Step 2: If Consent is Not Obtained, Apply to the Provincial Court for a Warrant to Inspect
If the occupant does not consent to the Development Officer entering the property, the Development Officer may apply to the Provincial Court pursuant to ss. 242(2) of the PDA for a warrant to inspect the property. The Development Officer must provide the Court information under oath showing reasonable grounds to believe the development contravenes the Zoning Bylaw. The Court may issue a warrant authorizing the Development Officer to inspect the property if it is satisfied that reasonable grounds exist.
Step 3: Inspect the Property
If a warrant is issued pursuant to ss. 242(2) of the PDA, it is important to ensure that the inspection is limited to the area named in the warrant. We recommend that the Development Officer document the inspection with detailed notes and photographs.
Step 4: Prepare the Appropriate Order
If the inspection reveals a contravention of the Zoning Bylaw, the Development Officer may issue a written order to the occupant of the property pursuant to ss. 242(4) of the PDA. Depending on the progress of the work on the development, the Development Officer may either issue:
(1) a Stop Work Order; or
(2) an Order to Remedy a Contravention
Step 5: Ensure the Order is Complete
The Order must meet all of the following criteria listed in s. 242(5) of the PDA:
- Specify the contravention and which sections of the Zoning Bylaw have been contravened.
- Direct the person how to remedy the contravention by doing all or any of the following:
- Stop work on the development;
- Make necessary alterations to remove the contravention;
- Restore the property to its condition immediately before the work began;
- Complete the necessary work to comply with the Zoning Bylaw
- Provide a deadline for compliance. The compliance period should be at least 30 days to correspond with the 30 day appeal period.
- Advise of the right to appeal to the Development Appeals Board within 30 days of the Order being issued.
In addition to the criteria set out in s. 242(5) of the PDA, the Order should also:
- Indicate the Order is being issued pursuant to s. 242 of the PDA;
- Identify the address of the property subject to the Order;
- Identify the name of the Development Officer who inspected the property;
- Identify the date the property was inspected;
- Advise that it is an offence to fail to comply with the Order and that upon conviction an individual is liable to a fine of not more than $10,000 and in the case of a continuing offence, to a further fine of not more than $2,500 for each day during which the offence continues (s. 243(2) of the PDA).
Step 6: Serve the Order by Registered Mail or Personal Service
Subsection 242(6) of the PDA provides the Order must be served by either registered mail or by personal service.
Registered Mail: Section 241 of the PDA provides that if delivery is within the municipality, the Order is deemed to be served on the third day following the day on which the Order was mailed. If delivery is outside of the municipality, the Order is deemed to be served on the fourth day following the day the Order was mailed.
Personal Service: If the Order is personally served, the individual who served the Order should execute an affidavit of personal service.
Step 7: In the Event of Non-Compliance, Apply for a Court Order After Expiry of Appeal Period
If the occupant fails to comply with the Order by the deadline set out in the Order and if the occupant has not appealed the Order within the 30-day appeal period, the Development Officer may apply to the Court of King’s Bench pursuant to s. 242(10) of the PDA for an order to require the occupant to comply with the Order.
The failure to follow any of the steps listed above could constitute grounds to appeal the Order to the Development Appeals Board. Therefore, it is worth taking the time and effort to ensure compliance with the enforcement process set out in the PDA.
MLT Aikins has extensive experience advising municipalities on the enforcement of zoning bylaws. If your municipality requires assistance in issuing an Order, or any other step in the enforcement process, please contact our Municipal group to learn more.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.