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2012 BCSC 63 Okanagan-Similkameen (Regional District) v. Leach [63] I am not persuaded that the general prohibitive clause is only engaged if the challenged use more appropriately fits in another class of uses in another zone. Rather the appropriate inquiry is to examine what is permitted in a given zone; any other uses are prohibited. [64] A “single detached dwelling” is defined as “a detached building consisting of one dwelling unit that does not exceed a width-to-length ratio of 1:4, and has a minimum width of 5.0 metres”. This definition refers solely to the structure, not to any activities in the dwelling. However, a “dwelling unit” is defined as meaning “one or more habitable rooms constituting one self-contained unit which has a separate entrance, and which contains washroom facilities, and which is designed to be used for living and sleeping purposes” (emphasis added). The only restriction with respect to the activities that are permissible in the use of a dwelling unit is that it must be designed to be used for living and sleeping purposes. There is no express provision which states that the dwelling unit must be put to a “residential” use. [65] However, the heading, which is a part of the 2008 Zoning Bylaw by virtue of s. 6.4.3, describes the RS1 Zone as a “Residential Single Family One Zone”. The Court must interpret the provisions so as to give effect to the Regional District’s intention as reasonably expressed in the bylaw. In my view the intention of the Regional District as expressed through the heading is that the single family dwelling must be put to a “residential use”. Notably, the term “residential” is not defined anywhere in the 2008 Zoning Bylaw. [66] The plain meaning of “residential” is connected with or pertaining to a residence. “Residence” is defined in the 2008 Zoning Bylaw as referring to a “permanent or seasonal home on a lot”. [67] The meaning of the terms “residential” and “reside” were considered by the BCCA in Kamloops (City) v. Northland Properties Ltd., 2000 BCCA 344 where the Court of Appeal stated as follows at para. 14: ... they refer to having one’s home in a particular place “for a considerable length of time”, and define “residential” to mean “occupied mainly by private houses”... [68] Black’s Law Dictionary, 8th ed. (St. Paul: West Pub. Co., 2004) at 1335 defines residence as: The act or fact of living in a given place for some time. 2. The place where one actually lives, as distinguished from a domicile. Residence usually just means bodily presence as an inhabitant in a given place; domicile usually requires bodily presence plus an intention to make the place one's home. A person thus may have more than one residence at a time but only one domicile. Sometimes, though, the two terms are used synonymously. ... [69] In Whistler (Resort Municipality) v. Miller, 2001 BCSC 100, the primary authority relied upon by the Regional District, the term "residential" was expressly defined in the bylaw as meaning a fixed place of living, excluding any temporary accommodation, to which a person intends to return when absent. The term "tourist accommodation" was also defined as meaning a building containing one or more habitable rooms or dwelling units that are used primarily for temporary lodging by visitors. The Court held at para. 23 that it was therefore: ...untenable to suggest that the rental of a detached dwelling to short term paying guests is a normal http://www.courts.gov.bc.ca/jdb-txt/SC/12/00/2012BCSC0063cor1.htm[03/29/2012 10:23:44 AM]
2012 BCSC 63 Okanagan-Similkameen (Regional District) v. Leach and customary residential use. ...this is particularly true in the context of the Bylaw where Residential/Tourist Accommodation Zones have been established and in which detached dwelling and tourist accommodation uses are expressly permitted. [70] In the 2008 Zoning Bylaw, unlike the bylaw considered by the Court in Whistler, there is no express provision to oust temporary accommodation as a permissible use in the RS1 Zone. This renders the analysis in Whistler distinguishable. [71] I do accept, nonetheless, that on the principles articulated by the Court in Whistler, the rental of a detached dwelling to short-term paying guests is not a normal and customary residential use in the sense of being the principal use for this type of property. [72] Significantly, the 2008 Zoning Bylaw defines a “secondary use” as “a use that is permitted only in conjunction with a designated principal use for each zone”. The 2008 Zoning Bylaw includes a list of permissible secondary uses for each zone. “Private visitor accommodation” is expressly permitted as a secondary use in the RS1 Zone. It follows, that the explicit listing of private visitor accommodation as a secondary use demonstrates that the Regional District did not intend for short-term vacation rentals to fall within the scope of the approved principal use as a single detached dwelling. Applying the principles of effectivity and implied exclusion, I conclude that short-term vacation rentals are not permissible as a principal use in the RS1 Zone. On a proper interpretation of the 2008 Zoning Bylaw, short-term vacation rentals are only permissible as a secondary use in the RS1 Zone if these rentals qualify as “private visitor accomodation.” Whether the defendants have been lawfully using the Property as a “private visitor accommodation” [73] Having determined that short-term vacation rentals are only permissible as a secondary use in the RS1 Zone, the question in this case is whether the defendants’ use of the property qualifies as “private visitor accommodation” and if so, whether the defendants’ use is secondary to the principal residential use of the Property as a single detached dwelling. [74] A “private visitor accommodation” is defined as “an occupation conducted within a principal dwelling unit, by the residents of the dwelling unit, which provides sleeping accommodation to the traveling public (Provincially exempt)”. A bed and breakfast operation is stated to be “a form of private visitor accommodation”. [75] It emerges from the submissions that there are three principal objections to the Vacation Rentals qualifying as private visitor accommodation under the 2008 Zoning Bylaw: (1) by definition – the occupation must be conducted within a principal dwelling unit, by the residents of the dwelling unit, (2) pursuant to s. 11.1.1 private visitor accommodation is permitted only as a secondary use in the RS1 Zone, http://www.courts.gov.bc.ca/jdb-txt/SC/12/00/2012BCSC0063cor1.htm[03/29/2012 10:23:44 AM]
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Okanagan-Similkameen (Regional District) v ... - Rdosmaps.bc.ca

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