Legitimate renters concerned that delay of court decision will affect their businesses
Despite efforts by the municipality to resolve the issue, owners of legitimate tourist accommodation in residential areas of Whistler may have to wait until spring for an appeal court ruling before authorities crack down on illegitimate operators ? companies and individual home owners renting their places out in contravention of municipal bylaws.
The Resort Municipality of Whistler started 25 legal actions against "illegal" operators in 1999, including taking a pair of Prince George dentists to court who offered their Whistler property on a short-term rental basis. The dentists argued that most of the people using their home were co-workers and friends, but admitted to renting it out nightly for periods of less than 28 days.
The municipality hoped that the outcome of that case would set a precedent that it could use to bring other so-called illegitimate operators into line.
The case was heard on Feb. 17, 2000, but it took Supreme Court justice Ian Drost until Jan. 15, 2001, to hand down his decision. He granted the municipality a permanent injunction, banning the couple from renting their home on Clifftop Lane on a short-term basis. Drost also awarded the municipality costs.
The couple appealed the decision, and a date for the appeal was expected to be set by this fall.
Typical of a case that Whistler Mayor Hugh O?Reilly says is probably one of the longest in the province?s history, a date has yet to be set.
"We?re very optimistic that the appeal will be rejected once the case is heard, and that a decision will be returned very quickly," O?Reilly said. "The last decision took too long to get, it?s one of the longest ever in B.C. history."
According to Jonathan Baker, the lawyer representing dentists Vicki Miller and Michael Rivera, the wheels are still turning.
"We?ve submitted our factum, and we?re waiting for theirs. We?ve been told to expect it in the next week. We can expect a court date three months after that. A decision should come about a month after the hearing, I should think," says Baker.
On Aug. 23 the municipal bylaw department sent a letter to the illegitimate operators that were identified, reminding them that it?s against zoning bylaws to rent their places as tourist accommodation, and warning them that the municipality is prepared to take legal action.
According to the letter: "The judgement in this case (RMOW vs. Miller and Rivera) has been appealed and it is anticipated that the appeal will be heard some time in the fall of this year. However, with the Supreme Court?s endorsement of the Municipality?s interpretation of the zoning bylaw?s provisions relating to temporary tourist accommodation, the Municipality has decided that it will now actively enforce the tourist accommodation prohibitions for those properties where enforcement proceedings had been deferred while we were awaiting the judgement of the B.C. Supreme Court."
Since the appeal has been delayed until 2002 at the earliest, the bylaw department and municipality admit their hands are tied without a strong precedent.
"What we?re hoping is that the appeal will come out in our favour, that people will recognize what the courts have said and we won?t have to go through the process of spending unnecessary legal funds," says municipal administrator Jim Godfrey. "We hope people will come into voluntary compliance with the bylaw."
In the meantime, legitimate operators are worried about the impact illegitimate operators may have on their business this winter.
"The bottom line is that as someone who has complied with the law, and has with great expense bought property for the purpose of running a business, I?m being penalized, and may lose my businesses because of the illegal business practices that abound," says Lina Jakobs of Whistler Home Holidays.
Jakobs admits to being an illegitimate operator herself four years ago when a group of pension owners, as well as homeowners who were concerned about the noise and the traffic, brought the issue to light.
The municipality removed a moratorium to allow people an opportunity to apply to rezone their properties and become legal operations. Only three homes made it through the process before the municipality stopped considering rezoning applications in response to public outcries.
When it became clear that the municipality was going to take legal means to enforce the bylaw, Jakobs says she made a responsible business decision to comply. She sold homes that were not zoned for nightly rentals, and spent "millions" on houses that were.
Many illegitimate operators continue to rent their places illegally, and Jakobs says it?s the municipality?s responsibility to protect and support legitimate business owners.
"Unfortunately we were damned then because we didn?t (rent legally), and we?re damned now because we don?t," she says.
"In the course of proactive plans, surfing the Web, checking out the other businesses, I was shocked to find over 50 homes listed for tourist accommodation, not only privately by homeowners, but by Whistler businesses.
"My first reaction was ?shame on you,? they should know better than that. But this is a serious misrepresentation of businesses in Whistler. This is something that the governing bodies in Whistler should be made aware of. There should be business accountability within these associations, especially with the accommodation industry."
According to Jakobs, as a legitimate rental operator in Whistler, she is bound to a set of quality and safety standards. Her costs are higher as a result, and she can?t offer the same prices as illegitimate operators. The last thing she says she needs, with new business down over the past year ? and things looking worse this year due to the war on terrorism and the recession ? is illegal competition.
"I know I?ve lost business to these illegitimate operations. I?ve actually recorded a list of people who have contacted me for rentals and that have booked somewhere else. I know where and I know in many of those cases the business was not legitimate," says Jakobs. "I have been notified by many guests thanking us for great service, but saying they have booked elsewhere in Whistler, price and not paying taxes being the reasons."
If the original court decision is upheld at appeal and the municipality can start to enforce zoning bylaws, Jakobs has been told that she may be able to take legal action against illegitimate operators to recover damages.
"We purchased zoned properties for the purpose of running a legitimate business, and there?s no way that I?m going to give up my homes, the business and family income to businesses who advertise illegal properties," she says. "There is a strong motivation for me to see a resolution. There is something inherently wrong with this situation."
