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B.C. Court of Appeal upholds municipal bylaw on nightly rentals

Accommodation providers hope it spells the end of illegal temporary accommodation operators By Clare Ogilvie. The B.C.

Accommodation providers hope it spells the end of illegal temporary accommodation operators

By Clare Ogilvie.

The B.C. Court of Appeal has dismissed an appeal by two Whistler property owners against the municipality’s zoning bylaw, which prohibits tourist accommodation in houses zoned as single family dwellings.

"The right decision was made," said Bill Barratt, the municipality’s general manager of community services.

"The impact on this is that if anyone out there was thinking things were going to change, or that maybe it is up in the air, it is pretty clear it’s not."

Barratt said the municipality would be sending out a letter confirming the finding of the appeal court to anyone previously contacted about illegally renting their homes.

And anyone who contravenes the bylaw will be pursued all the way to court if necessary said Barratt.

The Court of Appeal decision comes more than two years after a pair of Prince George dentists were taken to court by the municipality for renting out their Whistler home to co-workers and friends on a short term basis.

In January 2001, a year after the case was heard, a B.C. Supreme Court judge granted the municipality a permanent injunction banning the couple from renting their home on Clifftop Lane for short periods of time.

But the case may not be over yet.

Jonathan Baker, lawyer for the dentists, Vicki Miller and Michael Rivera, said his clients were still considering taking the case to the Supreme Court of Canada.

"There is a possibility," Baker said this week. "That decision hasn’t been made yet."

There is an interesting twist to the story in that the Court of Appeal did not hand down reasons for its judgement.

In essence it did not address any of the arguments raised by Baker.

"The effect of it is that the arguments that were raised on appeal will now be raised on behalf of the next defendant who comes along," said Baker.

"A judge could say this is a different case than the one before and we are going to decide it on different grounds."

And just because the court has upheld the bylaw, said Baker, doesn’t mean that there aren’t other defences that could be used should another case come before the courts.

For example homeowners could argue that they were doing this before the bylaw came into force and therefore are allowed to continue doing it, said Baker.

It’s up to the municipality to prove that people are renting out their homes and that could be difficult.

Just because a home is advertised for short term rent on a Web site doesn’t mean it actually gets rented.

Baker is advising people to consider their options before signing any consent forms offered to them by the municipality.

"When the city comes… and asks you to sign a consent order… think twice about that because (you) may well, not withstanding this decision, win the next case because these issues have not been touched by the court," said Baker.

But Lina Jakobs of Whistler Home Holidays is hoping the Court of Appeal ruling brings a close to this issue.

"It’s good news for those who have zoned properties who struggled through last year," she said.

Jakobs owns properties zoned for nightly rental herself, and represents 10 to12 other homes.

She said she understands the plight of Whistler families who violate the bylaw to rent out their homes and use this extra income to pay the bills, because she was once in the position herself.

But as she came to understand how the bylaw protects businesses she changed her focus and bought zoned properties and now pursues this as her main source of income.

The extra competition from illegal tourist accommodation operators over the winter was very damaging said Jakobs.

"We barely made it through this year because of the amount of homes on the market which were priced at such a rate that we either had to compete or have no business at all," she said.

"The requests were there without a doubt.

"But what we were hit with last year was a large number of people bringing to my attention that they could get a house for $400 or $500 so why pay $700, $800, $900 for one of ours."

Jakobs said professional accommodation providers face much higher costs that those who occasionally rent out their homes so it is impossible to compete with them long term.

"The operating costs are significantly higher," she said.

"Running and operating these homes that are zoned for the purpose of rental is expensive and it requires a certain amount of income to run these houses."

There may be a long-term solution, said Jakobs.

Once the illegal operations are shut down it will be possible to ascertain exactly how much business is coming to town and how much accommodation is needed.

"If it looks like there is enough business to lift the moratorium off," said Jakobs, "then maybe we could look at the issue at that time."