Okanagan-Similkameen (Regional District) v ... - Rdosmaps.bc.ca
Okanagan-Similkameen (Regional District) v ... - Rdosmaps.bc.ca
Okanagan-Similkameen (Regional District) v ... - Rdosmaps.bc.ca
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2012 BCSC 63 <strong>Okanagan</strong>-<strong>Similkameen</strong> (<strong>Regional</strong> <strong>District</strong>) v. Leach<br />
restriction on the rights of the resident. If the <strong>Regional</strong> <strong>District</strong> had intended to impose such a restriction, it<br />
should have done so expressly.<br />
[113] There is no express provision in the 1995 Zoning Bylaw to indi<strong>ca</strong>te that providing short-term rentals to<br />
one family at a time in a person’s private residence would not be permitted in a single family dwelling or that it<br />
would be permitted in another zone so as to be impliedly excluded from the general use as a single family<br />
dwelling.<br />
[114] In the result, I conclude that the defendants’ operation of the Va<strong>ca</strong>tion Rentals was compliant with the<br />
1995 Zoning Bylaw at the time the defendants commenced this use in 2005.<br />
(ii) Was this use continued<br />
[115] The next question with respect to lawful non-conforming use is whether the present use is, in<br />
substance, the same as it was in 2005. Moreover, that use must not have been discontinued for a period of<br />
more than six consecutive months.<br />
Legal Framework<br />
[116] In Sanders v. Langley (Township), 2010 BCSC 1543, at para. 33, Wedge J. distilled the principles for<br />
determining the relevant "use" under s. 911(1) of the LGA:<br />
... where a property owner <strong>ca</strong>n demonstrate that at the time of a new zoning bylaw his or her<br />
property was actually used in a manner that was a lawfully permitted use but for the new bylaw, the<br />
property owner is entitled to continue that formerly lawful, but now non-conforming use. The property<br />
owner must establish the actual use of the property on the exact date of the adoption of the new<br />
bylaw (City of North Vancouver v. Vanneck (1997), 39 M.P.L.R. (2d) 249 (B.C.S.C.) and <strong>ca</strong>ses cited<br />
therein).<br />
[117] In Sunshine Coast (<strong>Regional</strong> <strong>District</strong>) v. Bailey, (1995), 15 B.C.L.R. (3d) 16 (S.C.) at para. 31, the<br />
Court described the purpose of the law of non-conforming use and observed that the courts have adopted a<br />
liberal approach to interpreting the statutory lawful non-conforming use exemption in favour of the user:<br />
Presumably, it is the concept of fairness that supplies the underlying rationale for the statutory nonconforming<br />
use exemption, for its liberal interpretation by the courts through development of the<br />
"commitment to use" doctrine, and for the accompanying proposition that any doubt as to prior use<br />
ought to be resolved in favour of the owner. To prohibit completion of a land development project to<br />
which there has been an unequivo<strong>ca</strong>l commitment, including signifi<strong>ca</strong>nt physi<strong>ca</strong>l alteration to the site,<br />
savours of unfairness be<strong>ca</strong>use it is tantamount to giving the zoning bylaw retroactive effect, to the<br />
prejudice of the owner.<br />
[118] The liberal interpretation in favour of users, noted in Sunshine Coast, also applies with respect to<br />
whether a use has been discontinued. The courts have taken a broad approach to “use” in order to avoid the<br />
expiration of a lawful non-conforming use through discontinuance.<br />
[119] For instance, in Cowichan Valley (<strong>Regional</strong> <strong>District</strong>) v. Ward (1994), 95 B.C.L.R. (2d) 58 (C.A.), the<br />
Court considered whether the operation of a sawmill was a lawful non-conforming use pursuant to s. 722 of<br />
http://www.courts.gov.<strong>bc</strong>.<strong>ca</strong>/jdb-txt/SC/12/00/2012BCSC0063cor1.htm[03/29/2012 10:23:44 AM]