Court Holding STR Not a Residential Use Nanaimo (Regional District) v. Saccomani

Court Holding STR Not a Residential Use – Nanaimo (Regional District) v. Saccomani

2018 BCSC 752 Nanaimo (Regional District) v. Saccomani

IN THE SUPREME COURT OF BRITISH COLUMBIA

Nanaimo (Regional District) v. Saccomani,

2018 BCSC 752

 

     A. OVERVIEW

[2] The respondents provide vacation rental home accommodation in a zone that allows for “residential use”, “secondary suite”, and “home based business” (collectively referred to as “permitted uses”). They have been doing so since at least 2013. The vacation rental home is situated on beachfront property in Nanoose Bay. The area has an active vacation home rental market. However, this is the first time that the Regional District has sought such an injunction.

 

[4] The petitioner says that its Zoning Bylaw should be interpreted to exclude vacation home rental in the residential zone in which the respondents’ property lies.

[5] The respondents argue that their use of the property for vacation home rental is permissible within a broad interpretation of the term “residential use”. They say that this is the only reasonable interpretation having regard to the Regional District’s failure to expressly prohibit vacation rental home properties in an area where such uses are prevalent. They further argue that the petitioner’s interpretation of the Zoning Bylaw to exclude vacation rental properties in the residential zone runs afoul of the principles restricting municipalities from regulating land on the basis of user versus use.

 

   C. FACTS

[11] The Property is zoned Residential 1 (RS1) under the Zoning Bylaw enacted by the Regional District.

[12] The respondents purchased the Property as a future retirement home. They do not live in it. Rather, they use it as a vacation home for themselves, friends and family. For substantial periods of time the Property is rented to members of the public or tourists, as temporary vacation accommodation. The respondents have been renting the Property for this purpose since at least 2013.

[13] In 2017, the Property was booked for vacation rental for 116 days with each individual booking ranging from three to eight nights. The Property is currently booked for rental during the 2018 season, with the last booking ending on the first weekend of September 2018. When the Property is not booked for rental, it is empty, except for those times when the respondents or their family and friends use it.

 

[14] The petitioner first became aware that the respondents were using the Property as a vacation home rental in June 2016, when they received a complaint from a neighbour. Ardella Freko, the neighbour, owns a home next door to the respondents, where she and her husband reside.

[15] Ms. Freko’s complaint encompasses alleged noise violations, traffic congestion, and safety concerns related to strangers peering into her windows and leaving a fire untended on the beach. She says that often because of the noise she has had to retreat indoors from her patio, and is hesitant to invite friends to the patio area because of the fluctuating noise levels from the renters staying at the respondents’ Property.

[16] According to Ms. Freko she has only seen the respondents at the Property approximately three times in the past four years. The respondents say that this is because they often stay at the Property when Ms. Freko is not there.

[17] While investigating Ms. Freko’s complaint, the Regional District of Nanaimo Bylaw Enforcement Officer, John Eubank, discovered that the Property was advertised on a vacation rental booking website hosted by “Vacation Rental By Owner” (VRBO).

Does Residential Use Include Vacation Rental

[32] An examination of the Zoning Bylaw as a whole, together with dictionary definitions, suggests that the broad purpose of the RS1 Zone is to ensure that the residential nature of a neighbourhood is maintained by permitting only compatible uses for properties contained within the RS1 Zone. Indeed, although commercial activities such as a home based business and secondary suite accommodation are permitted in the RS1 Zone, these activities are narrowly defined and must be ancillary to the primary use, which is residential.

  1. [33]  The Zoning Bylaw defines the following key terms:residential use means the accommodation and homelife of a person or persons in common occupancy, and shall only be conducted within a dwelling unit;dwelling unit means one self-contained unit contained within common walls with a separate entrance intended for year-round occupancy and the principal use of such dwelling unit is residential with complete living facilities for one or more persons, including permanent provisions for living, sleeping, cooking and sanitation;home-based business means an economic activity conducted as an accessory use on a parcel;secondary suite means one or more habitable rooms and a cooking facility for residential accommodation, consisting of a self-contained unit with a separate entrance but which is clearly accessory to a principal dwelling unit located on the same parcel as the secondary suite and may not be subdivided under the Strata Property Act;accessory use means a use combined with but clearly incidental and ancillary to the principle permitted uses of land, buildings or structures located on the same parcel.
  2. [34]  The use of the term “homelife” suggests that residential use must be non-transient. It is embodied by those who live on the property and use it as their habitual abode.

[35] Respondents’ counsel relies on the following definition of “home life” found in the English Oxford Living Dictionary, (online):

A person’s family, personal relationships, and domestic interest considered as a whole. ‘A stable home life for their families’

[36] The Concise Oxford Dictionary, 9th ed, defines “home” as follows:
1.a. the place where one lives; the fixed residence of a family or household.

b. a dwelling house.

[37] Counsel for the petitioner relies on the definition of “home” from Black’s Law Dictionary, 5th ed. which reads as follows:

One’s own dwelling place; the house in which one lives; especially the house in which one lives with his family; the habitual abode of one’s family; a dwelling house.”

[38] There is a common theme in these dictionary definitions, which suggests that a home is the fixed or habitual residence of a person and their family. “Home life” then consists of more than just the physical activities that are conducted on a property (e.g. cooking, eating, sleeping) – they are activities that are performed by family members or individuals who share a domestic interest.

[39] The incorporation of a shared domestic interest into the definition of home life is consistent with the broader definition of residential use contained in the Zoning Bylaw, which requires that a person or persons living within a dwelling unit, conduct their home life together in “common occupancy”.

[40] The non-transient interpretation of “home life” is also apparent when the Zoning Bylaw is read as a whole. While various tourist and temporary accommodations are expressly permitted in other zones (e.g. “Inn”, “Hotel”, “Guest Accommodation”) the only tourist accommodation permitted expressly in an RS1 zone is the accessory use of the Property as a home based bed and breakfast business. However such use is permitted only within clearly defined parameters.

[41] Section 3.3(14)(a)(iii) provides that as a part of “home based business activities”, usage of a property for a bed and breakfast is permitted, “provided the activity is contained wholly within the dwelling unit to a maximum of 2 bedrooms in Residential 1 and 3 zones and to a maximum of 4 bedrooms and all other zones where permitted by this Bylaw.” The Zoning Bylaw defines bed and breakfast as follows:

bed and breakfast means the economic activity of providing bedrooms within a dwelling unit and the first meal of the day for the temporary accommodation of the travelling public; provided that the occupancy by a member of the travelling public does not exceed 120 days in any calendar year.

 

[42] Existing jurisprudence also supports the interpretation of residential activity being non-transient. Numerous courts have held that the definition of “residential” precludes temporary lodging. In Kamloops (City) v. Northland Properties Ltd., 2000 BCCA 344 at para. 15, the Court stated that “it appears the intention of the bylaw is to permit units to be occupied by persons who normally reside there and to prohibit their occupation by tourists, travellers, and other persons who require only temporary lodging…” See also Conconi at para. 30; Regional District Fraser-Fort George v. Norlander (2 April 2014), Victoria 13-2936 (B.C.S.C.) at paras. 15, 24-26, aff’d 2015 BCCA 439.

[43] In Conconi at para. 14, the Court referred to its decision in Whistler (Resort Municipality) v. Miller, 2001 BCSC 100 at para. 51, aff’d 2002 BCCA 347 [Miller], and noted the importance of residential zoning in order to ensure compatible uses:

The principal purpose of zoning regulations, as with restrictive covenants, is to preserve property values by prohibiting uses which are believed to be deleterious to neighbourhoods mainly residential in character. People living in an area of single family homes naturally want the same type of homes in the district, that is, a use that is compatible. They want to preserve the amenities of their locality. Thus from the standpoint of the rate payers it is the status quo that is sought to be maintained and build up residential areas which are figuratively rimmed with “keep out” signs. Industry, always an unwelcome intruder in a residential community, also favours a zoning wall that bars residential and other incompatible encroachments.

[44] Vacation rental properties can change the character and nature of a residential neighbourhood. Vacationers do not share the same long term goals that residents in a particular zone have – to have a comfortable, stable and secure environment in which they can live, work and play. While members of the travelling public may share the recreational aspects of these goals, their short term focus runs contrary to the long term goals of the residents.

[45] A resident who makes their home life in the dwelling unit is accountable to neighbours. There is strong motivation to be a good neighbour, one who is willing to self-regulate negative behaviours such as excessive traffic and noise. As is evidenced by Ms. Freko’s reports of noise violations, traffic congestion, and safety concerns, the same constraints do not apply to members of the travelling public. Even where owners of the vacation rental property include codes of conduct as part of the rental contracts (such as was done by the respondents), these may have little impact on curbing the behaviour of vacationers. This does not mean that noise violations or traffic congestion do not occur in residential zones that do not have vacation rental properties. To the contrary. However, such conduct is constrained when persons feel accountable to the other residents in a neighbourhood. Such accountability simply does not exist for members of the travelling public.

[46] Understandably, then, while s. 3.3(14)(a)(iii) of the Zoning Bylaw permits transient accommodation of bed-and-breakfasts within the residential zone, it does so within clearly defined parameters which dictate that such use must be ancillary, contained within a specific number of  rooms, and for a limited time frame.

[48] As noted by the court in Re Convenience Services Ltd. v. City of Sault Ste. Marie et al., 118 D.L.R. (3d) 362 (On SC) to be subordinate, the use must be carried on to enhance the principal use of the property (cited with approval in Re M M Project Management Services Inc., 2012 BCSC 47, at para. 79; and Corman Park (Rural Municipality No. 344), 121 Sask R 212 (SK QB), at paras. 29- 31). In the case at bar, the vacation rental use does not enhance the principal use which is residential; rather it replaces residential use with a vacation rental use that is not permitted in the bylaws.

[49] The respondents’ argument that renting out the Property for temporary accommodation forms part of the normal and customary residential use, is also not supported by the evidence or the case authorities. First, the Property is not their habitual residence. The respondents maintain their primary residence in Alberta. They therefore cannot consider the Property as being a dwelling unit for themselves.

[50] Second, as aptly noted by the Court in Whistler (Resort Municipality) v. Wright, 2003 BCSC 1192 at para. 51 [Wright], “[i]n order for property to be used as ‘residential’ property, it must be a fixed place of living, not a revolving door.”

[51] I therefore conclude that the respondents’ use of the Property as a vacation rental is not a permitted use under the Regional District’s Zoning Bylaw. As such, by operating their Property as a vacation home rental, the petitioners are in breach of the Zoning Bylaw.

 

[48] As noted by the court in Re Convenience Services Ltd. v. City of Sault Ste. Marie et al., 118 D.L.R. (3d) 362 (On SC) to be subordinate, the use must be carried on to enhance the principal use of the property (cited with approval in Re M M Project Management Services Inc., 2012 BCSC 47, at para. 79; and Corman Park (Rural Municipality No. 344), 121 Sask R 212 (SK QB), at paras. 29- 31). In the case at bar, the vacation rental use does not enhance the principal use which is residential; rather it replaces residential use with a vacation rental use that is not permitted in the bylaws.

[49] The respondents’ argument that renting out the Property for temporary accommodation forms part of the normal and customary residential use, is also not supported by the evidence or the case authorities. First, the Property is not their habitual residence. The respondents maintain their primary residence in Alberta. They therefore cannot consider the Property as being a dwelling unit for themselves.

[50] Second, as aptly noted by the Court in Whistler (Resort Municipality) v. Wright, 2003 BCSC 1192 at para. 51 [Wright], “[i]n order for property to be used as ‘residential’ property, it must be a fixed place of living, not a revolving door.”

[51] I therefore conclude that the respondents’ use of the Property as a vacation rental is not a permitted use under the Regional District’s Zoning Bylaw. As such, by operating their Property as a vacation home rental, the petitioners are in breach of the Zoning Bylaw.