On January 18, 2012, the BC Supreme Court found against the Regional District in the case of Okanagan-Similkameen (Regional District) v. Leach, 2012 BCSC 63, regarding the operation of a short-term "vacation rental” use within the Residential Single Family One (RS1) Zone under the Electoral Area 'E' Zoning Bylaw No. 2459, 2008.

The Court concluded that Zoning Bylaw allowed “private visitor accommodation” as a “secondary use” where a principle residential use was established. 

The Court also concluded that the current definition of a “dwelling unit” describes a structure and does not limit the use of that structure only to residential. Following on from this, the definition of “private visitor accommodation” does not limit the use of a “dwelling unit” to only a “bed and breakfast” operation where the regular occupants of the “dwelling unit” are conducting the business.

Consequently, a “vacation rental” is a permitted secondary use, subject to a number of preconditions, including:

• evidence that the amount of time the property is occupied by renters is less than the amount of time that the property is occupied by the owners and their non-paying guests;
• the “vacation rental” may not be permitted in a secondary suite;
• no more than 8 people may be accommodated with the dwelling unit as part of the “vacation rental” at any one time;
• no more than 3 bedrooms used for this purpose on smaller lots and no more than 4 bedrooms on larger parcels are permitted as part of the use; and
• the “vacation rental” may only be operated by the principal residents of the dwelling.  “Vacation rentals” operated by commercial vacation rental businesses are not permitted.

The decision of the Court is seen to broaden the use of “private visitor accommodation” beyond the traditional scope of how the Regional District has understood and applied this particular aspect of Zoning Bylaw No. 2459, 2008.

PUBLIC OPEN HOUSE - POWER POINT RESENTATION -  BED & BREAKFAST AND VACATION RENTAL OPERATIONS

In response, the Planning & Development (P&D) Committee of the Regional District Board, at its meeting of April 5, 2012, directed staff to prepare the following land use bylaw amendments:

1. the “private visitor accommodation” use in Electoral Area ‘E’ Zoning Bylaw be replaced by “bed and breakfast”;
2. the regulations which pertain to “bed and breakfast” operations be updated and made consistent across all Electoral Area Zoning Bylaws;
3. use of a dwelling for “vacation rentals” be excluded from the definition of “bed and breakfast” and/or “dwelling unit” in all Electoral Area Zoning Bylaws; and
4. the definition of “bed and breakfast”, “dwelling unit” and “single detached dwelling” be reviewed and made consistent across all Electoral Area Zoning Bylaws.

At its meeting of September 6, 2012, the P&D Committee supported a series of proposed amendments related to B&B operations, the intent of which is to conform to the direction provided on April 5, 2012, by introducing consistent regulations across Electoral Area Zoning Bylaws and distinuishing B&B operations from short-term vacational rental operations.

Amendment Bylaw No. 2594, 2012, which relates to these proposed changes, was adopted by the Board at its meeting of March 21, 2013. 

At its meeting of April 5, 2012, the P&D Committee also directed staff “to explore the use of Temporary Use Permits to control vacation rentals and to bring forward a report on issues and potential policies.”

Temporary Use Permits (TUPs) are authorised under Section 921 of the Local Government Act and allow the Regional District to permit uses not otherwise allowed by a zoning bylaw. 

Historically, TUPs could only be issued for Industrial or Commercial uses and for a period of up to two (2) years, however, legislative changes enacted in 2010 now allow for TUPs to be considered for all types of uses and for a period of up to three (3) years.  The Regional District is currently in the process of updating all Okanagan Electoral Area Official Community Plans (OCPs) to reflect these changes (see Amendment Bylaw No. 2570, 2012).

Unlike a rezoning, a TUP only grants a property owner assured use rights for a defined period of time, thereby providing the community with an assurance that use of the site for a vacation rental does not become permanent.  A TUP requires the discretionary approval of the Board and is not issued as a right if the steps indicated in the Regional District’s Development Procedures Bylaw No. 2500, 2011, area followed.

Amendment Bylaw No. 2595, 2013, was adopted by the Regional District Board at tis meeting of March 20, 2014.

The Regional District Board also adopted, at is meeting of March 20, 2014, a "Vacation Rental Temporary Use Permit Policy" which limits the initial term of a TUP issued for a vacation rental use to a term not exceeding 18 months.  In this way, should it be determined that a vacation rental use is inappropriate, incompatible or unviable at a particular location, the permit could be allowed to lapse or not renewed (subject to application) within a relatively short period.

The current application fee for a TUP is $2,500.00 (under Section 931 of the Local Government Act, a fee “must not exceed the estimated average costs of processing, inspection, advertising and administration that are usually related to the type of application or other matter to which the fee relates”).  A renewal fee of $1,250.00 also applies.

In terms of future community notification of such applications, the Regional District’s Development Procedure Bylaw states that applications for a TUP may be required by the Board to convene a Public Information Meeting prior to consideration of an application.