By Loreth Beswetherick
The owners of a condominium in the Telemark Place complex, near the new Westin hotel, have been told their tenants have to go or they can expect legal action.
Kyle McGauchie and Catherine Hadyn-Wise rented their unit to four employees of the Chateau Whistler for three months, from June 15 this year. McGauchie said the employees came with excellent references from both previous landlords and their employer. But on June 21, Telemark Place strata council chairman Ben Tessler, reminded the couple that renting to employees — or anyone who does not comprise a family unit — flies in the face of a strata bylaw passed in 1997. Anyone contravening the bylaw also faces a fine of $50 per day.
This is not news to McGauchie and Hadyn-Wise, who used to rent their condo to a British tour company. The 1997 strata bylaw also prohibits nightly rentals of the commercially-zoned condo complex. It effectively pulled their business out from under their feet. Once the bylaw was passed they were given until July 1998 to cease and desist their tourist accommodation operation.
McGauchie and Hadyn-Wise said they bought their unit in 1996 specifically because of the CC1 (Commercial Core 1) designation. Half of the complex also has a phase two covenant on it, which means units have to be placed into a rental pool. The other half is has a phase one covenant, where owners have the option of an organized rental program.
McGauchie said the strata bylaw overrules the municipal zoning. He sought legal counsel and he asked the municipality to help enforce its CC1 zoning, which was intended to create warm beds close to resort amenities like restaurants and ski lifts. Two years ago, Mayor Hugh O’Reilly said the municipality was seeking legal opinion to see if the strata bylaw could indeed supersede the municipal covenant and the zoning.
But McGauchie said the municipality has done nothing and is ignoring their plight. He wrote another letter to the mayor and council in June which was tabled at the last council meeting. "We have been suffering for two years. The muni is calling it a grey area and ignoring it. I think they should just stick to the community plan and the zoning."
Municipal Administrator Jim Godfrey said McGauchie’s last letter is now being treated as an official complaint. Godfrey said municipal solicitors have submitted a refined legal opinion which is currently being examined by director of planning, Mike Purcell. "At that point we will decide how we go forward." He said there are several other condominium complexes where strata council’s have taken similar action but each will have to be examined individually.
The battle over "illegal" tourist accommodation in single family residential neighbourhoods has dominated the municipal and council agendas for the last two years and the Telemark issue seems to have slipped through the cracks. But it is interwoven with the TA question. According to the municipality, Telemark is "legal" tourist accommodation in a commercial neighbourhood. Now that commercial operations are being shut down in residential neighbourhoods, places like Telemark are supposed to carry the tourist burden.
"I have been telling the municipality for a year that if other stratas aren’t stopped from doing this it will impact the product available, not only for tourists but employees as well," McGauchie said.
Godfrey said the reduction in TA inventory is a concern. "We are now moving forward on it."
Telemark strata chairman Tessler said he hopes no legal challenge comes from the municipality. He said the bylaw was a last-straw measure to preserve the "residential" integrity of the commercially-zoned complex.
His comments echo those presented at a recent public hearing on tourist accommodation which spurred council to reconsider their zoning approach in single family residential neighbourhoods. Tessler cited incidents of loud parties, beer cans, overcrowding, parking problems, beat up and abandoned cars and damage to the complex — all involving employees and tourists. He said he even had his life threatened when he asked one group to pipe down at 4 a.m..
"The guy put his nose less than an inch from my face and started screaming at the top off his voice. He called me every name he could think of... said I was a weekender and he was a Whistler resident and that I should get my sorry ass back to Vancouver or he would send me back with a whole lot of bumps and bruises. He was quite drunk." Tessler said his wife called 911.
"There were so many problems. The owners finally got fed up after a number of years of having to live with it," said Tessler. "We got together and decided we are not going to take it anymore. It’s not right and it’s not necessary. That’s one of the reasons I voted for this bylaw and one of the reasons I applied for the job as chairman. I wanted to have some say in my future... I wanted a future. If no one bugs you, you live and let live."
The strata retained the legal services of B.C. condominium law specialist Patrick Williams to draft the bylaw. It is Williams’ opinion a substantial majority vote can "preclude an owner using a strata lot in a manner that is consistent with the permitted uses of the zoning." He noted that when an owner buys a strata lot he gives up some of the benefits he might otherwise have enjoyed from the ownership of a detached single family house. "He states that different benefits accrue to those owners who undertake collective or corporate living, that is inherent in condominium living and ownership."
McGauchie and Hadyn-Wise retained the services of local lawyer Nick Davies in 1997, who said at the time the strata had forgotten they were living on resort lands as defined by the Resort Municipality of Whistler Act. He said the issue is whether the private interests addressed by the Condominium Act take precedence over the public interests addressed by the Resort Act. Davies said the strata can legally pass the bylaw but whether it is enforceable and reasonable may have to be determined by a judge. He said if the case goes to court, it will be a test case in the province.
Purcell said strata councils can pass bylaws that further restrict uses.
"That’s fine. The issue with Telemark is the covenant on half of the units that stipulate they go into a rental pool. It’s a matter of the municipality enforcing the rental pool. We are looking into it." McGauchie said.
Telemark owners living in units with a phase two covenant are in contravention of the municipal bylaw and McGauchie has asked that the bylaw be enforced. With a phase two covenant, owners are restricted to use of the unit for a total of 28 days in the summer and 28 in the winter.
But any action will probably be too late for McGauchie and Hadyn-Wise. McGauchie said he has finally decided to put his tail between his legs, sell his condo and leave town for good, opting for the more welcoming climate of Sun Peaks. Trouble is, he said, the bylaw has now devalued his property and he is getting a rock-bottom price.
It was one realtor’s opinion in 1997 that the bylaw would devalue the commercial units by between 25 to 33 per cent. Rick Reid said, in McGauchie’s case, that could amount to as much as $150,000. He said when the time comes for selling, it will be impossible to attain the pre-bylaw price.
"The net worth of the other owners would be similarly affected."