Court (finally) sides with Whistler 

Single family home zoning prohibits rental as tourist accommodation

A B.C. Supreme Court judge has granted the Resort Municipality of Whistler a permanent injunction banning a Prince George couple from renting their second home in Millar’s Pond to tourists.

But the battle is not yet over.

It has taken almost a year for Justice Ian Drost to hand down judgment in this first case against owners using property in single-family residential zones for short-term tourist accommodation.

Drost ruled that Vicki Miller and Michael Rivera are acting in contravention of Whistler’s residential zoning bylaw by renting out their Clifftop Lane home. He also ruled that the municipal bylaw was not "vague and unenforceable" as argued by the defence.

When Whistler council directed municipal staff in May 1999 to clamp down on illegal chalet operations in residential neighbourhoods, some property owners complied immediately.

Others, however, continued to advertise their properties for short term rentals and the RMOW launched 25 legal actions against a total of 33 of the higher profile properties.

The Whistler versus Miller case was the first to go to trial, Feb. 17 last year.

Drost’s decision was finally handed down Monday, Jan. 15, but only after Whistler wrote a letter, co-signed by the defence, to the judge and the Supreme Court registrar pointing out that both parties had been waiting for a decision for nearly a year.

The letter noted that resolution of this matter was urgent, always had been urgent and that justice delayed was justice denied.

The judgment in the Miller case now sets a precedent for the 24 cases to follow but legal counsel for the defendants, Jonathan Baker, said he has had direction from his clients to proceed with an appeal.

An appeal could realistically be heard within another nine months.

Baker, in the interim, will also likely be seeking a stay of execution of the injunction so that the home can still be rented to tourists pending a decision on the appeal.

It will depend on the RMOW whether the remaining 24 cases are now brought to trial, said Baker. "That is entirely up to Whistler. They could chose to prosecute them all right now aggressively."

RMOW staff will be meeting with legal counsel to decide on a course of action. The municipality will, however, be advising all affected property owners of the court’s decision.

"We are pleased to have resolution to this issue at last," said Mayor Hugh O’Reilly. "It’s been a long time to wait, but this is a positive direction for the community," he said. "Upholding the bylaw enables us to maintain the integrity of residential neighbourhoods in Whistler." O’Reilly added that the decision should act as a deterrent to those who continue to contravene the zoning bylaw.

Miller and Rivera consider their Clifftop Lane property to be their second home. They live there for at least one week during each month of the year and they spend most of their holidays there as well.

The dentists often allow friends and family members to stay in their house, always without charge. They have also held several office "retreats" during which they and their employees stay at the house for one-week periods. As well, they have provided "bonuses" to their office staff in the form of free one-week stays at the house.

The couple also admitted to the court that they make the house available for individual stays of less than four consecutive weeks and for a total of less than 70 days per year.

These uses, ruled Drost, are in contravention of the zoning bylaw. Strict interpretation of the bylaw, noted Baker, means no one, not family nor non-paying guests, are permitted to stay in residential homes on a short-term basis.

He said, however, the municipality did argue it would not be going after all violators, only commercial rentals.

"But where is the line drawn?" asks Baker.

"If a corporation makes a house available as a benefit to employees is that okay? If guests come to a house and contribute something towards expenses or if the tenants are relatives who pay something for the use of the house, is that okay?"

Baker said there are several grounds for appeal.

The municipality was awarded costs.

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