Okanagan-Similkameen (Regional District) v ... - Rdosmaps.bc.ca

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]