The District of North Saanich has won an injunction against a landowner who has constructed or converted several structures on his property into housing, contrary to local zoning bylaws.
Kenneth Rawlins, who owns the land, told the B.C. Supreme Court that the rental suites he created provide necessary affordable housing in a community suffering from a lack of it. He also argued that the rental income he receives from the suites allows him to afford to keep the property.
"The respondent points out that the rental levels he charges are low to moderate (below market rents), and that he has not increased the rents on the units for a number of years for long-term tenants," wrote Justice Ardith Walkem in her decision, which was issued Wednesday.
"The tenant of the main dwelling unit is a single parent with two children. The tenant of the basement suite has a mental disability and lives in the suite rent-free, in exchange for helping with the yard work. The respondent argues that the current tenants are long-term renters whose lives will be disrupted if the orders sought by the district are granted. The respondent points out that there have been no public complaints about the well-maintained property."
REZONING PLANNED, BUT NOT IN PLACE
According to the decision, Rawlins and the district have been at odds over the land for more than a decade.
The owner initially purchased the land with the goal of subdividing it, court documents indicate. In 2009 and 2010, he approached the district about subdivision, and was told that his property would likely be rezoned for multi-family dwellings in the future.
Indeed, North Saanich's Official Community Plan calls for the 1.1-acre property on East Saanich Road to be rezoned as multi-family residential, a designation that would allow up to 23 units to be constructed on the lot, according to the court decision.
That zoning is not in place currently, however, and the district petitioned the court for an injunction to compel Rawlins to comply with the existing zoning.
"The district points out that the respondent owns another home where he lives," Walkem wrote. "The property and the respondent’s home are each worth over a million (dollars). The district therefore disputes any hardship argument on his personal behalf. The district argues that the respondent is not free to unilaterally disregard zoning and building bylaws, and that it is the public interest which is harmed if such actions are allowed."
THE SUITES
According to the court decision, the property has the following units on it:
A suite comprised of the entire upper level of the main single-family dwelling
An unauthorized secondary suite on the lower level of the main single-family dwelling
An accessory building, permitted as an office/studio, but constructed into a suite without authorization, described in the decision as a "guest cottage"
A detached garage, permitted as a single-storey detached garage, but onto which an upper floor was constructed to create a suite without authorization, described as a "carriage house"
An under-construction building for which the district issued a stop work order, alleging that it was being constructed as another dwelling
A trailer/RV at the rear of property with permanent service hook-ups
Three of these suites – the main dwelling, the basement suite and the guest cottage – are currently tenanted, according to the decision.
'THE LAW IS CLEAR'
In addition to citing the hardship he and his tenants would face if the injunction were granted, Rawlins argued that other rental suites in the district are also illegal, and have not faced similar actions.
Walkem dismissed this argument, noting that "the law is clear" on injunctions for bylaw infractions.
"Once breach of the district’s bylaw(s) is shown, and the local government applies for a statutory injunction, the injunction ought to be granted, barring exceptional circumstances," she wrote. "The district is presumed to be enforcing the public right."
The judge concluded that current zoning regulations could allow for either the basement or the guest cottage to be brought into compliance, but not both.
"The combination of buildings, and the manner in which they were built or renovated for use, beyond their permitted use, are in contravention of both the zoning bylaw and the building bylaw," Walkem wrote. "It is not open to property owners to circumvent the jurisdiction of the district by building or renovating residences as they see fit. To allow this approach would be contrary to the public interest and defeat the purpose of the district’s zoning and building bylaws."
The judge granted the district's application for the injunction, which is intended to "prevent the continued occupancy" of the rental suites and "decommission" them.
The injunction won't take effect right away, however.
"Given the difficulty the tenants may face in finding alternative accommodation, and taking into consideration the hardship that will be experienced by the tenants, the operation of the injunction is suspended for a period of eight months regarding the basement suite and guest cottage," Walkem wrote. "During that time, if the parties wish to do so, it may be possible for them to reach an agreement which would allow the respondent to bring some of the units into compliance."
Post a Comment