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2012 BCSC 63 Okanagan-Similkameen (Regional District) v. Leach [106] The Regional District also contends that under the 1995 Zoning Bylaw the defendants’ use of the Property to provide temporary rental accommodation would have been allowed in other zones within the Naramata area, namely the general tourist commercial zone and the tourist commercial heritage zone, both of which permit motels, hotels, and resorts. I note parenthetically that, as in the 2008 Zoning Bylaw, there is no reference whatsoever in the 1995 Zoning Bylaw to a “commercial tourist accommodation”. [107] The defendants submit that their use of the Property met the criteria for use as a “single family dwelling” under the 1995 Zoning Bylaw: the building contains one “dwelling unit” and is occupied or intended to be occupied by one “family” at a time. [108] As mentioned earlier, the defendants’ uncontroverted evidence is that the use of the Property since 2005 can be characterized as follows: vacant much of the time, used by the defendants as a second home, used by friends and family members of the defendants from time to time, and available for rent to one family at a time by the week, mainly in the summer months. [109] The Property does not meet the definition of a “motel” as it was not designed to provide temporary accommodation to the travelling public. Nor is the Property a resort “intended to be used by the public on a temporary or seasonal basis for recreational purposes”. The term “hotel” is not defined; however, the Concise Oxford English Dictionary, 9 th ed. defines it as “an establishment providing accommodation and meals for travellers and tourists”. Overall, I am satisfied that the rental by the defendants of their single family residence clearly does not amount to the operation of a hotel, motel, or resort. I therefore conclude that the short-term rental of a single family dwelling does not expressly fall within a prescribed use in another zone of the 1995 Zoning Bylaw. [110] Since the defendants’ use did not qualify as a home occupation or a bed and breakfast, the only pertinent use is as a single family dwelling. Notably the 1995 Zoning Bylaw does not distinguish between principal and secondary uses - unlike the 2008 Zoning Bylaw there is no prescribed secondary use as a temporary visitor accommodation. Nor is the heading of Residential Single Family One Zone (RS1) expressly stated as a part of the bylaw. [111] Unlike the bylaws considered by the Court in Whistler, the 1995 Zoning Bylaw does not provide a clear and explicit statement of intent to exclude temporary accommodation; there are no clear restrictions or definitions which limit the use to which a single family dwelling can be put. [112] The 1995 Zoning Bylaw states that a “single family dwelling” means a building that consists of one dwelling unit; is located on an approved continuous perimeter foundation; and is occupied or intended to be occupied by one family. The definition of a “dwelling unit” primarily refers to the physical characteristics of the dwelling and requires that it be used or intended to be used for the living and sleeping of not more than one family. There is, however, no express stipulation that s single family dwelling could not be used by different families at different times in the year. Rather one would assume that “occupied by one family” means that only one family could occupy the residence at a time; not that another family could never stay there. If such were the case, a resident could never allow another family to use their property, which would be a significant 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 restriction on the rights of the resident. If the Regional District had intended to impose such a restriction, it should have done so expressly. [113] There is no express provision in the 1995 Zoning Bylaw to indicate that providing short-term rentals to one family at a time in a person’s private residence would not be permitted in a single family dwelling or that it would be permitted in another zone so as to be impliedly excluded from the general use as a single family dwelling. [114] In the result, I conclude that the defendants’ operation of the Vacation Rentals was compliant with the 1995 Zoning Bylaw at the time the defendants commenced this use in 2005. (ii) Was this use continued [115] The next question with respect to lawful non-conforming use is whether the present use is, in substance, the same as it was in 2005. Moreover, that use must not have been discontinued for a period of more than six consecutive months. Legal Framework [116] In Sanders v. Langley (Township), 2010 BCSC 1543, at para. 33, Wedge J. distilled the principles for determining the relevant "use" under s. 911(1) of the LGA: ... where a property owner can demonstrate that at the time of a new zoning bylaw his or her property was actually used in a manner that was a lawfully permitted use but for the new bylaw, the property owner is entitled to continue that formerly lawful, but now non-conforming use. The property owner must establish the actual use of the property on the exact date of the adoption of the new bylaw (City of North Vancouver v. Vanneck (1997), 39 M.P.L.R. (2d) 249 (B.C.S.C.) and cases cited therein). [117] In Sunshine Coast (Regional District) v. Bailey, (1995), 15 B.C.L.R. (3d) 16 (S.C.) at para. 31, the Court described the purpose of the law of non-conforming use and observed that the courts have adopted a liberal approach to interpreting the statutory lawful non-conforming use exemption in favour of the user: Presumably, it is the concept of fairness that supplies the underlying rationale for the statutory nonconforming use exemption, for its liberal interpretation by the courts through development of the "commitment to use" doctrine, and for the accompanying proposition that any doubt as to prior use ought to be resolved in favour of the owner. To prohibit completion of a land development project to which there has been an unequivocal commitment, including significant physical alteration to the site, savours of unfairness because it is tantamount to giving the zoning bylaw retroactive effect, to the prejudice of the owner. [118] The liberal interpretation in favour of users, noted in Sunshine Coast, also applies with respect to whether a use has been discontinued. The courts have taken a broad approach to “use” in order to avoid the expiration of a lawful non-conforming use through discontinuance. [119] For instance, in Cowichan Valley (Regional District) v. Ward (1994), 95 B.C.L.R. (2d) 58 (C.A.), the Court considered whether the operation of a sawmill was a lawful non-conforming use pursuant to s. 722 of http://www.courts.gov.bc.ca/jdb-txt/SC/12/00/2012BCSC0063cor1.htm[03/29/2012 10:23:44 AM]
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