The Resort Municipality of Whistler (RMOW) has filed a defense against a legal challenge from homeowners seeking to overturn zoning restrictions that prevent short-term tourist rentals on their Horstman Estates properties. In a response submitted April 11 to the Supreme Court of British Columbia, the RMOW argues its decisions to terminate a land-use contract and adopt a new community plan are reasonable, procedurally fair, and legally sound. The original petition, filed March 4 by Alan and Lenore Gelfand and Steven and Katherine Nichols, claims the RMOW unfairly eliminated their right to operate rentals, escalating a years-long debate over Whistler’s residential zoning.
The petitioners’ properties, strata lots at 4930 and 4950 Horstman Lane, are valued at $7.54 million and $6.62 million, respectively. The homeowners argue these high-value properties, located in Horstman Estates, were historically permitted for tourist accommodations, a use they say the RMOW has now unjustly restricted. The municipality counters that the properties have always been zoned for single-family residential use, a designation it has lawfully maintained.
Petitioners’ initial claims
On March 4, the Gelfands and Nichols filed a petition challenging two RMOW decisions: the adoption of the Official Community Plan (OCP) Bylaw No. 2199 in 2020, which they claim reclassified their properties as “residential-very low (detached),” and the Land Use Contract (LUC) Termination Bylaw No. 2323 in 2022, which rezoned Horstman Estates to RS3 (Single Family Residential Three). As reported by Pique on March 20, the petitioners argue these changes were unreasonable, ignoring a late-1980s land-use contract and a 1983 “warm bed policy” that allegedly permitted short-term rentals without requiring rental pool covenants. They also claim procedural unfairness, asserting inadequate notice and consultation, and cite decades of rental activity—supported by RMOW-collected commercial fees until a 2024 stop order—as evidence of their right to continue, bolstered by a 1999 legal opinion suggesting such use was permissible.
The petitioners further contend the zoning restrictions harm their investments, reducing the economic value of properties. They seek court orders to amend the bylaws and issue business licences for tourist accommodations, arguing the RMOW’s actions defy historical precedent.
RMOW’s legal defense
The RMOW traces its zoning authority to the 1975 Resort Municipality of Whistler Act, which established it as B.C.’s first resort municipality. The properties fall under a 1979 land-use contract, amended in 1988, and a 1989 covenant, both restricting the lots to “single residential buildings” for one family or up to six unrelated persons living as a domestic unit. The RMOW argues this definition excludes commercial tourist rentals, a stance reinforced by court rulings like Whistler v. Miller (2001) and Whistler v. Wright (2003), which found short-term rentals incompatible with residential use.
In 2022, the RMOW terminated the land-use contract, as mandated by the Local Government Act, rezoning Horstman Estates to RS3 to maintain its residential status. The 2020 OCP, designating the properties as “Residential – Low to Medium (Detached/Multiple),” is a policy document, not a zoning decision, the RMOW says, and is not bound by prior plans. The municipality denies the petitioners’ claim that the “warm bed policy” applies, noting no rental pool covenants exist on their properties.
Procedural and legal arguments
The RMOW asserts its decisions are subject to a “reasonableness” standard, citing Canada v. Vavilov (2019) and 1120732 BC Ltd. v. Whistler (2020), placing the burden on petitioners to prove otherwise. It argues zoning is discretionary under the Local Government Act, and it was not obligated to permit tourist rentals, even if previously tolerated. The RMOW refutes claims of procedural unfairness, detailing public hearings held on April 16, 2019, for the OCP, and April 19, 2022, for the LUC Termination Bylaw, with proper notice. The petitioners were not entitled to personal OCP notice, as it applied broadly, and Alan Gelfand participated in the LUC hearing, the RMOW notes.
The RMOW dismisses the petitioners’ estoppel argument—that past fee collection implied rental approval—citing cases like Immeubles Jacques Robitaille inc. v. Quebec (2014), which hold municipalities cannot be bound by acquiescence. It also deems the 1999 legal opinion irrelevant and corrects the petitioners’ claim of a May 10, 2022, “public hearing,” clarifying it was a regular council meeting.
Challenges to relief and timeliness
The petitioners seek a court order to force bylaw amendments and business licences, which the RMOW argues is invalid, as these are discretionary acts and no 2025 licence applications exist. The petition is also untimely, filed nearly three years after the LUC Termination Bylaw and five years after the OCP, beyond the Local Government Act’s one-month notice period, risking dismissal for delay.
The RMOW estimates a two-day hearing which is scheduled for June 23, 2025. None of the allegations have been proven in court.
