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2012 BCSC 63 Okanagan-Similkameen (Regional District) v. Leach interpret the provision as importing a requirement that the resident be on site during the private visitor accommodation. [92] The Regional District points out that the Court may consider evidence of administrative interpretation in order to resolve any ambiguities in a bylaw: Conconi, at para. 29. Contrary to their submission, however, I am not persuaded that the 2008 Zoning Bylaw is ambiguous insofar as it refers to “residents” in the definition of “private visitor accommodation” or in s. 7.19.6. [93] For completeness I have nonetheless considered Ms. Aylwin’s evidence, to which she deposed in May 2011, after she was promoted to the role of Bylaw Enforcement Coordinator, that the Regional District’s administrative and enforcement staff have consistently interpreted s. 7.19.6 of the 2008 Zoning Bylaw as requiring the residents of a principal dwelling unit to be present on site if they wish to use their property for the purpose of providing private visitor accommodation in the RS1 Zone. However, In her affidavit on the point she purports to use the term “resident” interchangeably with the terms “occupier” and “inhabitant”, which terms are not referenced in the provisions regarding “private visitor accommodation”. [94] The authorities direct that the courts are to interpret bylaws so as to give effect to the intention of the municipal authority as expressed in the bylaw on a reasonable basis: Neilson, at para. 18. I am not persuaded that, on an objective analysis, the interpretation advocated by the Regional District is expressed in the 2008 Zoning Bylaw. [95] The parties made submissions on the applicability of the presumption of validity and whether the disputed provisions are intra vires the Regional District under the LGA. In view of my findings it is unnecessary to address those submissions. [96] In the result, I conclude that the defendants, in compliance with the 2008 Zoning Bylaw, have been lawfully operating their private visitor accommodation as a secondary use of their single family dwelling. [97] This is sufficient to dispose of this application. However, for completeness, I turn to consider the application of the doctrine of lawful non-conforming use. Issue 2: Can the defendants rely on lawful non-conforming use [98] The defendants rely on the protection of s. 911(1) of the LGA and submit that they meet the criteria for lawful non-conforming use. Legal Framework [99] Lawful non-conforming use is permitted under certain circumstances, as set out in s. 911 of the LGA. This section provides that a use of land that is lawful when a bylaw is adopted, but is subsequently rendered unlawful by the enactment of the bylaw, may continue. Section 911 of the LGA provides as follows: If, at the time a bylaw under this Division is adopted, (a) land, or a building or other structure is lawfully used, and 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 (b) the use does not conform to the bylaw, the use may be continued as a non-conforming use, but if the non-conforming use is discontinued for a continuous period of 6 months, any subsequent use of the land, building or other structure becomes subject to the bylaw. [100] Notably, if a use has been discontinued for a continuous period of six months, the user can no longer rely on the exemption provided for lawful non-conforming use. [101] Subsection 911(2) provides that a use of land on a seasonal basis is not discontinued as a result of normal seasonal practices, including (a) seasonal, market or production cycles, ... (c) the repair, replacement or installation of equipment to meet standards for the health or safety of people or animals. [102] Section 911(5) explicitly limits the scope of renovation activities permitted on properties relying on the lawful non-conforming use exemption: (5) A structural alteration or addition, except one that is required by an enactment or permitted by a board of variance under section 901 (2), must not be made in or to a building or other structure while the non-conforming use is continued in all or any part of it. [103] The onus is on the party alleging lawful non-conforming use to prove it on a balance of probabilities: Country Lane Developments v. Coquitlam (City), 2003 BCSC 1121; North Vancouver (City) v. Vanneck (1997), 39 M.P.L.R. (2d) 249 (B.C.S.C.). (i) Was the use permitted under the 1995 Zoning Bylaw [104] The pivotal question is whether the use of the Property as a short-term vacation rental was permitted under the 1995 Zoning Bylaw. [105] The Regional District argues that the defendants cannot rely on the protection of the law of nonconforming use because the use of the Property as a commercial tourist accommodation was never a permitted use under the 1995 Zoning Bylaw. Under the 1995 Zoning Bylaw, the only relevant permitted uses for the defendants’ Property in the RS1 Zone were as a “single family dwelling” or a “home occupation”. The defendant’s use clearly would not qualify as a “home occupation”, as this use is only permissible if involves less than 50 square metres of the floor area of the dwelling unit and the defendants admit that the Vacation Rentals provided use of the Property as a whole. The Regional District submits that the Property was not being used as a “single family dwelling” either, as this refers to a dwelling unit occupied or intended to be occupied by one family. The Regional District points out that the defendants admit they rented the Property out on a short-term basis to various vacationing families throughout the years. Hence, they submit, the defendants were in breach of the 1995 Zoning Bylaw and cannot rely on the law of non-conforming use because their use was never “lawful”. 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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