Establishing Non-Conforming Rights

Role of Participants

Applicant: files affidavit providing information substantiating non-conforming right. Three fundamental rules apply when submitting an affidavit:

• Does the person(s) putting forward a claim have personal knowledge?
• Was the specific use or non-complying zone standard lawfully established on the day the zoning regulations were changed?
• Has it been continuous since establishment?

City Staff: provide assistance to all applicable individuals involved in the process, conducts validation process for all affidavits filed and undertakes notification process for filed affidavits.

Counter Claimant: files counter affidavit applying the same criteria as in filing an affidavit. Any affidavit filed must be based on facts. The information provided to the City will be treated seriously and the person(s) making the counter claim will be expected to appear in court, as may be required to assist in pursuing compliance with the Zoning By-law.

What happens next

The affidavit is internally reviewed to determine acceptability.

If the affidavit is determined invalid the applicant is notified and the process ends. Other options would have to be explored to allow development to take place (Zoning By-law amendment, Committee of Adjustment application).

If the affidavit is determined to be valid a circulation process is initiated. A notice is sent to the Ward Councillor, Community Organization and owners/occupants within a 60 metre radius of the applicable property. The notice contains a summary of the affidavit, an explanation of the process and a contact person within the Planning, Real Estate and Economic Development Department.

Counter Affidavit process

If a counter affidavit is submitted, a Commissioner of Oaths from the Client Service Centres will be available to commission counter affidavits, staff review is undertaken to determine its validity. If the counter claim is determined invalid, the circulation process ends and individuals who replied to the circulation notice are informed of the decision and the application/process will proceed.

If the counter affidavit is considered valid, the applicant and counter claimant are notified that the counter claim has been accepted. The General Manager, Planning, Real Estate and Economic Development may issue an extension of 15 days at the request of the claimant where a legitimate case has been made.

When a counter affidavit is accepted, the applicant is notified that a violation exists. The applicant is liable to rectify the issue by using one of the following options:

• Voluntarily complying with existing regulations
• Applying for a Zoning By-law amendment
• Applying to the Committee of Adjustment for a minor variance

If the applicant fails to take steps to regularize the issue, the matter would be dealt with through the courts. It should be noted that the counter affidavit participant would be expected to be involved if court action is required.

The fee for an application for Establishing Non-Conforming Rights (effective January 1, 2024) is $710.00.

Application forms are available at all Client Service Centres or online and should be submitted at one of the City’s Client Service Centres with the required fee and any other information that may be needed to assess your application.

• Establishing Non-Conforming Rights Application Form

PDF Documents - Download in .pdf format and read it with Adobe Acrobat.

If you require assistance using an electronic application form please contact a Development Information Officer, located at any of the Client Service Centres. You can make an appointment by calling a Development Information Officer at  613-580-2424 ext. 23434 or dioinquiry@ottawa.ca