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District of Tofino wins court case against illegal vacation rentals

Short term rentals remain prohibited at South Chesterman Beach Homes.

Tofino’s fight against illegal vacation rentals received a confidence boost over the holidays as the district’s decision to refuse business licences to a group of Chesterman Beach townhouse owners was upheld by the B.C. Supreme Court.

“The District is pleased to receive confirmation that short-term rentals are not permitted at South Chesterman Beach Homes, as we have asserted this for several years,” said Tofino mayor Josie Osborne through a statement released by Tofino’s district office last week. “Short-term rentals have come to play a large role in Tofino’s tourism accommodation offerings and provide many local homeowners with valuable income. The District of Tofino will continue to proactively enforce its short-term rental regulations and work with property owners to ensure they understand and meet these regulations.”

The decision marks the first major victory for the district since Tofino’s council made the decision to proactively enforce its bylaws around vacation rentals, which had up to then been enforced on a complaint-driven basis, in 2016.

READ MORE: Housing shortage causes Tofino to strengthen stance against vacation rentals

Osborne told the Westerly News via email that council’s decision was a result of discussions around the community and cases of residents being evicted from their homes as landlords opted to turn their properties into short-term rental accommodations.

“While we were never under the illusion that proactively enforcing short-term rental regulations would result in a large number of STRs being converted back to long-term rentals, we felt strongly that the residential primary use of properties needed to be protected and that the playing field needed to be levelled in the accommodation sector,” Osborne said.

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The South Chesterman Beach Homes case began in 2017, when the district refused to issue business licences that would have allowed the townhouse owners to operate short term rentals. Tofino’s municipal council upheld that decision in February, 2018, resulting in the owners petitioning the B.C. Supreme Court on April 12, 2018.

In her ruling, published on Dec. 24, the Honourable Madam Justice Loo wrote that the petitioners sought “declarations of law and legal entitlements, and only incidentally or secondarily, judicial review of District Council’s reconsideration decision.”

READ MORE: Tofino considers size restrictions for bed and breakfasts

She noted that the petitioners did not dispute that they were renting out their townhouses to visitors, nor did they dispute that their townhouses’ zoning did not allow for short term rentals under the district’s current bylaws.

“Rather, they argue that the District Council erred in finding that they had not established that a short-term rental was a lawful non-conforming use of the lands on the basis that a short-term rental use was a permitted use of their dwellings under 1997 Zoning Bylaw, as it existed at the time the South Chesterman Beach Homes townhouse development was constructed,” she wrote.

She rejected this argument and suggested that the bylaw provided clear regulations around tourist accommodations. She also rejected the petitioners’ claim that they did not require business licences for their short term rentals because their property management companies, and not themselves, were operating the business.

“However, the petitioners pay a fee to a property management company to advertise their units for short-term rentals, take reservations and payment, provide check-in and check-out services, and provide amenities including bathroom amenities,” she wrote. “The short-term rentals generate rental income. In my view, it was not unreasonable for the District Council to find on reconsideration that each of the petitioners is operating a tourist, traveller, or transient accommodation business on RM2 zoned lands that are not zoned for that purpose.”

READ MORE: Tofino council upholds license refusal for Tofino Vacation Rentals

She also dismissed the petitioners’ argument that only one-night stays were prohibited.

“The petitioners argue that the restrictive covenant against each of their lands, which restricts the use of the lands “for the purpose of transient overnight accommodation” means that they cannot rent their units for just one night or overnight, but they can rent their units for a minimum of two nights. I do not need to decide the issue of the s. 209 covenant, but find the petitioners’ argument to be akin to grasping at straws,” she wrote.

She concluded that short-term rentals were not a lawful non-conforming use of the townhouses, dismissed the owners’ petition and awarded costs to the district.

Osborne said “The court decision provides assurance to Council and staff that the Zoning Bylaw can be applied fairly and effectively.”

READ MORE: Tofino scouring web for unlicenced vacation rentals

She noted that the majority of the roughly 24 petitioners were not Tofino residents, but cautioned against locals using the court’s ruling to “vilify” those with secondary homes in Tofino.

“Many second-home owners are wonderful part-time members of our community who contribute greatly with time, expertise, and money. At the same time, the decision does send an important message to people who choose to live part-time or buy a vacation home in Tofino beyond the fact that they need to fully understand the rules and regulations before buying a property,” she said.

“That message is that our little town is first and foremost a community of neighbours and friends, and we welcome those who want to do more than just vacation or invest here, but also want to be a part of our ‘social fabric.’ If you can’t support or respect the STR regulations, then please visit us and enjoy this beautiful place by renting one of the many legal STRs or hotel rooms we offer.”

READ MORE: Behest of the West: Ease up on vacation rental angst

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Andrew Bailey

About the Author: Andrew Bailey

I arrived at the Westerly News as a reporter and photographer in January 2012.
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