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

2012 BCSC 63 Okanagan-Similkameen (Regional District) v. Leach
Plaintiff’s Position
[20] The Regional District’s overarching submission is that the use of the Property to provide short-term
vacation rentals without the defendants being present is prohibited by each of the 1995, 2006, and 2008
Zoning Bylaws. It seeks a declaration that the defendants are utilizing the Property as a “commercial tourist
accommodation”.
[21] In developing its primary contention, the Regional District argues that the defendants’ operation of their
tourist accommodation business contravenes each of the three Zoning Bylaws because the rental does not
fit within the prescribed list of permitted uses under the RS1 Zoning. It asserts that the rental of the property
contravenes the use as a “single-family dwelling” (within the meaning of the 1995 Zoning Bylaw) or as a
“single detached dwelling” (within the meaning of the 2006 and 2008 Zoning Bylaws (the “2006/2008 Zoning
Bylaws”)).
[22] The Regional District says that to allow persons to provide temporary accommodation with a singlefamily
or single detached dwelling would render the Bylaws ineffectual or superfluous.
Defendants’ Position
[23] As a general posture the defendants assert that the Regional District’s position is not supported on a
proper interpretation of the Bylaws. The defendants argue that:
(a) the 2008 Zoning Bylaw does not prohibit the defendants’ use. The defendants assert that their
use, which includes short-term rentals, falls within the permitted principal use in the 2008 Zoning
Bylaw as a “single detached dwelling” - the defendants, their guests and renters all use the
dwelling unit for living and sleeping purposes;
(b) alternatively it is a permitted secondary use as “private visitor accommodation”; and
(c) the 1995 Zoning Bylaw did not prohibit the defendants’ use and consequently their use currently
qualifies under s. 911 of the LGA as a lawful non-conforming use.
[24] The defendants challenge the Regional District’s characterization of their use as a “commercial tourist
accommodation”. They point out that there is no reference to the phrase “commercial tourist accommodation”
in any of the Bylaws.
[25] The defendants note that short-term rentals have always been common in residential neighbourhoods
in Naramata. They do not dispute, however, that the Regional District is not required to enforce every breach
of every bylaw. Its failure to prosecute a large number of violations of a particular bylaw does not invalidate a
prosecution of a violation of that bylaw: Coquitlam (City) v. Aweryn, 2000 BCSC 777 at para. 13, aff’d 2001
BCCA 373, citing with approval Burnaby (City) v. Pocrnic (1999), 6 M.P.L.R. (3d) 250 (B.C.C.A.) and Polai v.
Toronto (City), [1973] S.C.R. 38. Moreover, the right of a municipality to rely upon the provisions of its bylaws
cannot be waived, lost or vitiated by acquiescence, laches, or estoppel (Langley (Township) v. Wood, 1999
BCCA 260).
http://www.courts.gov.bc.ca/jdb-txt/SC/12/00/2012BCSC0063cor1.htm[03/29/2012 10:23:44 AM]