Z240 Solution

Dear Trustees

I have reviewed the Staff Report on the subject of interpreting the Land Use Bylaw to consider 5th Wheels and trailers with Z240 ratings (4 season) and have made a number of observations.

From the Staff Report:

Case Law: In Thompson-Nicola Regional District v. 0751548 B.C. Ltd. (2014 BCSC 1867)14, the Supreme Court considered whether recreational vehicles could be considered as “manufactured homes” or “mobile homes” within the meaning of the applicable bylaws. The judge concluded that “manufactured homes are designed and constructed for permanency and year round use, while recreational vehicles are generally designed as temporary accommodation, as is evident from the manufacturer warranties and related information about their use.” [48] The judge also indicates that the interpretation of the mobile home definition should focus on “how the manufacturers intended that the recreational vehicles be used rather than on how they may be used by individuals after they leave the factory.” [75] 

With all due respect, Staff have cherry picked facts from the case and misapplied them to the circumstances of Bylaw 355.

The land use bylaw in question in the Thompson-Nicola Regional District case specifically:

  1. defined “recreational vehicles.” Bylaw 355 does not.
  2. defined “mobile homes” as to exclude “recreational vehicles.” Bylaw 355 does not.
  3. defined “structure” to “not include a recreational vehicle”. Bylaw 355 does not.
  4. defined “dwelling units” in such a way as to exclude “recreational vehicles.” Bylaw 355 does not.
  5. Defined “building” in such a way as to exclude “recreational vehicles.” Bylaw 355 does not.

As noted above, the judge’s ruling was dependent upon the above definitions being present in the subject bylaw. In essence, by specifically defining “recreational vehicles,” without any reference to Z240 ratings, the bylaw excluded “recreational vehicles” from being considered “mobile” or “manufactured” homes under the subject bylaw.

Bylaw 355, as I have previously submitted:

  1. defines “mobile home” in such a way as to arguably include CSA Z240 rated 5th Wheels and trailers.
  2. defines “structures” in such a way as to arguably include CSA Z240 rated 5th Wheels and trailers
  3. defines “buildings” is such a way as to arguably include CSA Z240 rated 5th Wheels and trailers
  4. Defines “dwelling units” in such a way as to arguably include CSA Z240 rated 5th Wheels and trailers

While it is true, as Staff have pointed out, there are two Z240 ratings, there is nothing to suggest a restrictive, as opposed to permissive, interpretation to Bylaw 355 should be made.

I have copy and pasted the Thompson-Nicola ruling below, and made notes in bold as to highlight the differences between the particulars of that case, and, the definitions and interpretation of Bylaw 355, which I have previously submitted. I have placed my comments in blue bolding. I have struck through sections which, due to the facts, become irrelevant to the discussion at hand (e.g. those pertaining to a particular zone). I have bolded the sections (in either black or red) of the ruling which do pertain to the issue at hand.

It appears to me, that in summary, the existing definitions within Bylaw 355 allow CSA Z240 rated “structures” to be used as “dwellings” on Salt Spring. That would include “Park Models” and tiny homes built to Z240 standards.

Given the EXTREME shortage of affordable housing on the island, the acceptance by the LTC of my interpretation of the Bylaw, of using Z240 rated structures would go a long way to providing, if nothing else, a reasonable, low cost, temporary solution to the crisis.

The alternative is to pursue compliance against anyone living in a Z240 rated structure.

I submit, that under all the circumstances, at the very least, a moratorium via a standing resolution on enforcement against anyone using a Z240 rated structure as a dwelling be passed.

Thank you again for your consideration of the issue.

Best regards,

Eric Booth

 

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: Thompson-Nicola Regional District v. 0751548 B.C. Ltd.,  2014 BCSC 1867

Date: 20141003 Docket: 46999 Registry: Kamloops

Between:

Thompson-Nicola Regional District

Plaintiff

And

0751548 B.C. Ltd.

Defendant

Before: The Honourable Madam Justice Harris

Reasons for Judgment

Counsel for Plaintiff: J.W. Locke T.W. McNeil-Hay

Counsel for Defendant: R. Burke

Place and Date of Trial/Hearing: Kamloops, B.C. March 13-14 and 17-20, 2014 Place and Date of Judgment: Kamloops, B.C. October 3, 2014

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Thompson-Nicola Regional District v. 0751548 B.C. Ltd. Page 2

Overview

[1] In this case the plaintiff regional district seeks a declaration and injunction to restrain the defendant company from using its property for the accommodation of recreational vehicles and tents, which the plaintiff claims is in contravention of its zoning bylaws.

[2] The defendant company owns two adjacent lakefront lots on Kamloops Lake in the Thompson-Nicola Regional District, known as Lots A and B. The property in issue, Lot A, is within the Manufactured Home Park (MH-1) Zone. The plaintiff claims that the use of Lot A to park recreational vehicles or to erect tents is not a permitted use in the MH-1 Zone.

[3] The defendant company defends its use of the property on the basis that it is permitted under the existing zoning bylaw, Zoning Bylaw No. 2400 (“Bylaw 2400”), and its previous bylaw, Zoning Bylaw No. 940 (“Bylaw 940”). In essence, the defendant submits that the recreational vehicles on its property are “manufactured homes” or “mobile homes”, within the meaning of the bylaws and, therefore, permitted in the MH-1 Zone. Further, the defendant denies a contravention of the Bylaw in relation to tenting.

[4] The issues in this case can be summarized as follows:

  1. Is the defendant’s use of Lot A permitted by Bylaw 2400?
  2. If not, is the defendant’s use of Lot A a lawful, non-conforming use, by virtue of Section 911 of the Local Government Act, R.S.B.C. 1996, c. 323?
  3. Is the plaintiff entitled to the relief it is seeking?

Background

[5] The facts giving rise to this case are not significantly in dispute.

[6] On March 21, 1985, the plaintiff adopted Bylaw 940. On April 19, 2012, Bylaw 940 was repealed and replaced with Bylaw 2400.

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[7] The defendant purchased Lot A and B in June of 2006. The property is located in the Thompson-Nicola Regional District. While Lot A was designated as being in the MH-1 Zone, Lot B was designated as being in the Recreational Commercial (C-4) Zone.

[8] At the time of the purchase, there were four manufactured homes located on Lot A, which have remained on site. Although David Ayres, the president of the defendant, testified that there were also six recreational vehicle sites on Lot A, long time resident and neighbour Dan Dollimont testified that there were no recreational vehicles on Lot A when it was purchased by the defendant in 2006. Mr. Dollimont’s evidence was that Lot A had not been used as a campsite since 1997. This was also the conclusion of the Regional District.

[9] During the summer of 2006, Lot A was used for overnight accommodation by individuals who would “drop in” as well as for accommodation by individuals for the entire summer season.

[10] Since the defendant owned Lot A, it has permitted five recreational vehicles to be located on Lot A (the “Savona Trailers”). The Savona Trailers are occupied during the months of April to October by the owners of the recreational vehicles, who pay an annual amount of rent for the space occupied by their respective recreational vehicle. It is acknowledged by the defendant that there has also been some use of Lot A for overnight accommodation in tents since it purchased Lot A, although Mr. Ayres testified that the defendant ceased letting campers use Lot A in 2010.

[11] The individuals who occupy the Savona Trailers in the spring-summer season have permanent homes, which are located elsewhere. They return to their principal dwellings at the end of summer.

[12] In November of 2006 the defendant applied to the Regional District to amend the Official Community Plan and Zoning Bylaw No. 940 to “allow partial use for campground” in Lot A, which would allow recreational vehicles and tents to remain on the site. This application was not pursued.

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[13] In January of 2007, the defendant applied to amend the zoning designation of Lot A from MH-1 to C-4, with a permitted site special use for mobile homes. The application was not approved by the Regional District.

[14] The plaintiff has received complaints about the defendant’s use of Lot A. For example, Mr. Dollimont, who occupies an adjacent property, expressed concerns about his loss of privacy due to the number and proximity of the recreational vehicles parked on Lot A, the danger from wood-burning campfires on Lot A, and the amount of noise and traffic congestion associated with the weekend use of Lot A. He also expressed a concern about tenting on the property and referred to occasions when he saw tents being used on Lot A.

[15] The plaintiff wrote to the defendant on a number of occasions in 2010 and 2011 regarding the defendant’s use of Lot A as a “campground”. The plaintiff notified the defendant that this was not a permitted use and, further, that it was not a lawful non-conforming use, as Lot A had ceased to operate as a campground in 1997 – more than five years before the defendant purchased the property in 2006.

  1. Is the defendant’s use of Lot A permitted under Bylaw 2400?

[16] The first issue is whether the defendant’s use of Lot A is permitted under Bylaw 2400. Part 18 of the Bylaw prescribes conditions for MH-1 Zoned land.

In this case, the first issue would be are “mobile homes” allowed to be used as dwellings on any parcel of land on Salt Spring which allows dwellings?

Since a “mobile home” is defined as a dwelling, the answer is yes.

Therefore, as it relates to the question at hand, the use of a “mobile home” as a dwelling unit, on any land zoned for residential use is allowable.

[17] Bylaw 2400 was established pursuant to a Regional District’s authority under section 903 of the Local Government Act to divide the district into zones and regulate the use of land, buildings and other structures in the zones. Under Section 903(4) of the Act, the Regional District also has the authority to prohibit any use in a zone.

[18] The stated purpose of the MH-1 Zone is to encourage a high standard of manufactured home park development in appropriate locations. The permitted legal use of MH-1 zoned land is for “manufactured homes in manufactured home parks”. Permitted accessory uses include: related “ancillary service or utility buildings or structures”, and a “caretaker dwelling unit”.

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[19] The minimum parcel size for a manufactured home park is to be two hectares, with a maximum density of 20 manufactured homes per hectare.

[20] Bylaw 2400 stipulates that a manufactured home park must comply with the requirements of Manufactured Home Parks Bylaw 1949.

[21] As noted above, the defendant asserts that the presence of five recreational vehicles on Lot A is permissible under Bylaw 2400 because:

  1. The Savona Trailers fall within the definition of “manufactured home” in Bylaw 2400;
  2. The definition of recreational vehicle in Bylaw 2400 narrows its meaning to vehicles that provide temporary recreational accommodation for “the traveling public”. The owners of the Savona Trailers are providing accommodation for their own use at one location. They are not being used by “the traveling public”; and

iii. The prescribed density is satisfied as Lot A is .41 hectares in size, thereby allowing eight manufactured homes and an owner’s residence.

[22] A consideration of the defendant’s submission involves questions of statutory interpretation. I will, therefore, briefly review the applicable principles.

Principles of Statutory Interpretation

[23] Although the parties do not agree on the application of the principles of statutory interpretation in this case, the principles themselves are not in dispute. They were summarized by counsel in their written submissions.

[24] First, the modern, purposive and contextual approach to statutory interpretation applies to the interpretation of bylaws. As confirmed by the Court of Appeal in North Pender Island Local Trust Committee v. Conconi, 2010 BCCA 494, the correct approach to statutory interpretation is set out by Professor Driedger in The Construction of Statutes (Toronto: Butterworths, 1974), at para 13:

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…the words of an [enactment] are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the [enactment], the object of the [enactment], and the intention of the [the legislative body that passed the enactment].

[25] The Court of Appeal specifically confirmed that the purposive approach applies to the interpretation of zoning and land use bylaws. In North Pender Island Local Trust Committee, the court stated that:

[14] In interpreting zoning or land use bylaws, one must have regard to their general purpose. That purpose was described in I. M. Rogers, Canadian Law of Planning and Zoning (Toronto: Carswell, 1973), which was cited with approval in Whistler (Resort Municipality) v. Miller, 2001 BCSC 100, 20 M.P.L.R. (3d) 128 at para. 51, aff’d 2002 BCCA 347, 32 M.P.L.R. (3d) 29, as follows:  The principal purpose of zoning regulations, as with restrictive covenants, is to preserve property values by prohibiting uses which are believed to be deleterious to neighbourhoods mainly residential in character. People living in an area of single family homes naturally want the same type of homes in the district, that is, a use that is compatible. They want to preserve the amenities of their locality. Thus from the standpoint of the rate payers it is the status quo that is sought to be maintained and build up residential areas which are figuratively rimmed with “keep out” signs. Industry, always an unwelcome intruder in a residential community, also favours a zoning wall that bars residential and other incompatible encroachments.

[26] In Neilson v. Langley (Township), [1982] B.C.J. No. 2313, the Court of Appeal observed that because the Legislature has delegated to the municipality the power to create zones and to control the use to which land and buildings within those zones may be put, in interpreting zoning bylaws, the court should give effect to the intention of the municipal body as expressed in the bylaw:

[18] In the present case, in my opinion, it is necessary to interpret the provisions of the zoning by-law not on a restrictive nor on a liberal approach but rather with a view to giving effect to the intention of the municipal council as expressed in the by-law upon a reasonable basis that will accomplish that purpose.

[27] Second, the words in a statute are generally to be interpreted accordingly to their ordinary meaning of words used. In order to discern the ordinary meaning of terms, courts consider how the words are used in common speech and their dictionary definition, Perrier Group of Canada Inc. v. Canada, [1996] 1 F.C. 586

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(C.A.). In Lake Country (District) v. Kelowna Ogopogo Radio Controllers Association, 2013 BCSC 1971, Mr. Justice Cole described the ordinary meaning rule as follows:

[18] The interpretation of legislation properly begins with looking at the ordinary meaning of the words – with the words in their grammatical and ordinary sense (Sullivan, 24). The ordinary meaning is not the same as the dictionary definition, as the ordinary meaning will vary with the context (Sullivan, 27). One way of understanding ordinary meaning is the presumption that legislatures “use words in the same sense as would the ‘man in the street’” (Cote, Pierre-Andre, The Interpretation of Legislation in Canada, 3d ed (Scarborough, Ontario: Carswell, 2000) at 261).

[28] Other rules to aid in the interpretation, as noted by counsel for the plaintiff, were summarized by Mr. Justice Melnick in Fernie (City) v. Bossio, 2004 BCSC 1290, wherein he refers, at paras. 11-29, to the limited class rule (every word is there for a reason and should be considered in its context); the norms of plausibility rule (words should not be interpreted to create unacceptable consequences); the implied exclusionary rule (an intention to include a comparable item would be done expressly); and the associated words rule (where terms are linked, this may resolve ambiguity or limit scope). 

[29] Counsel for the defendant also referred to the ejusdem generis rule which provides that where general words follow a lengthy list of things which have some common characteristic, other things in the same genus may be included: Eurocan Pulp and Paper Co. v. British Columbia (Assessor of Area No. 25 – Northwest-Prince Rupert), [1981] B.C.J. No. 601 at paras. 6-9 (S.C.). 

[30] Third, an exception to the ordinary meaning rule applies where a term used in a statute is defined in the legislation, in which case the definition provided is exhaustive and displaces whatever meaning the terms might otherwise bear in ordinary or technical usage: Maynes v. British Columbia (Minister of Environment), 2009 BCCA 499, at paras. 30-32.

[31] Fourth, in interpreting a zoning bylaw, the appropriate inquiry is whether the use is permitted in the given zone, as other uses are prohibited. There is no obligation to consider whether the particular use falls within some other class of use

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in another zone, and may thereby be implicitly excluded from the uses permitted in the zone in question: Okanagan Similkameen (Regional District) v. Leach, 2012 BCSC 63, at paras. 61-63.

Are the Savona Trailers “manufactured homes” within the meaning of Bylaw 2400?

Relevant question – Are Z240 Fifth Wheel Trailers “mobile homes” within the meaning of Bylaw 355?

[32] In considering whether the Savona Trailers are “manufactured homes within the meaning of Bylaw 2400, I start with the purpose of this Bylaw, which is to ensure the systematic and orderly use of lands and buildings or structures for the greater good of the community, as set out in the Statement of Intent:

The purpose of this Bylaw is to guide the development and growth of the Electoral Areas of the Thompson-Nicola Regional District in a systematic and orderly manner for the benefit of the region as a whole by ensuring that the various uses of lands and buildings or structures develop in proper relationship to one another, having due regard for the following: (a) the promotion of health, safety, convenience and welfare of the public; (b) the prevention of the overcrowding of land and preservation of the amenities peculiar to any zone; (c) the securing of adequate light, air and access; (d) the value of the land and the nature of its present and prospective use and occupancy; (e) the character of each zone, the character of the buildings already erected and the peculiar suitability of the zone for particular uses; and (f) the conservation of property values.

Land Use Bylaw 355 Preamble – A BYLAW TO ESTABLISH REGULATIONS RESPECTING THE USE OF LAND AND WATER WITHIN THE SALT SPRING ISLAND LOCAL TRUST AREA, THAT ALSO LIE WITHIN ELECTORAL AREA “F” OF THE CAPITAL REGIONAL DISTRICT, INCLUDING THE USE, SITING, AND SIZE OF BUILDINGS AND STRUCTURES, AND THE PROVISIONS OF PARKING, SIGNS, AND THE SUBDIVISION OF LAND

[33] The specific purpose of the Manufactured Home Park Zone, as noted in Part 18 of Bylaw 2400, is to encourage “a high standard of manufactured home park development in appropriate locations”.

Bylaw 355 has no such stated purpose.

[34] Bylaw 2400 includes a comprehensive definition section which governs the interpretation of the terms used in the Bylaw. There is specific definition of “manufactured home”:

Manufactured Home means a factory designed and constructed dwelling unit which is transportable in one or more sections and which is intended to be occupied in a place other than its place of manufacture. Manufactured home shall not include a recreational vehicle or a park model recreation unit.

Bylaw 355 includes a comprehensive definition section which governs the interpretation of the terms used in the Bylaw. There is specific definition of “mobile home”:

mobile home” means a transportable, single or multiple section dwelling unit conforming to the Canadian Standards Association Z240 Series of Standards at time of manufacture, and designed and intended for residential occupancy and set up in accordance with required factory installation details.

There is no exclusion of recreational vehicles, trailers or park model recreation units.

“Travel trailers” and “recreational vehicles” are referred to within Bylaw 355, but, they are not defined.

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[35] “Recreational vehicle” is also defined in the Bylaw:

Recreational Vehicle means a vehicle designed to be towed behind a motor vehicle or self-propelled, and includes such vehicles commonly known as travel trailers, fifth wheels, camper trailers, park model recreation unit, pick-up coaches, motorized campers, motorized homes and other similar vehicles, which provide temporary recreational accommodation for the travelling public.

[36] The defendant says that the Savona Trailers meet the definition of manufactured home and can, therefore, remain in the MH-1 Zone. However, in my view, the term “manufactured home” cannot reasonably be interpreted to include the Savona Trailers.

My submission is that the definition of “mobile home” specifically states if a unit is built to CSA Z240 standards (which may include some 5th Wheels) it is deemed to be a “dwelling” under Bylaw 355. While Staff tries to differentiate between particular categories of Z240 (e.g. MH or R), the definition is  not exclusive to MH.

It is important to note the distinction as to what a Z240 rating denotes. It is a standard which allows 4 season occupation, anywhere in Canada. Considering its mild climate, it can be argued that Salt Spring is the ideal place to occupy a Z240 mobile home year round.

[37] Applying a purposive approach to the interpretation of Bylaw 2400, the evident intention of the Regional District, by establishing the MH-1 Zone, was to create manufactured home parks in which, apart from accessory uses, no other type of dwelling unit would be permitted. In that regard, recreational vehicles are expressly excluded from the definition of “manufactured home”.

[38] While the defendant suggests that the reference in the definition of “recreational vehicle” to those “which provide temporary accommodation to the travelling public” indicates an intention on the part of the Regional District to exclude recreational vehicles which are owner occupied and remain on site, I find that this interpretation is inconsistent with the stated purpose of the MH-1 Zone. Allowing any recreational vehicle which is occupied by its owner to remain in a manufactured home park would derogate from the exclusive nature of the manufactured home park zone, which the Regional District had established pursuant to its zoning authority: North Pender Island Local Trust Committee v. Conconi, 2010 BCCA 494.

There is no such “exclusive nature” of the use of a “mobile home” under Bylaw 355 to a particular zone.

[39] I consider that the words upon which the defendant relies, “which provide temporary accommodation for the travelling public”, when interpreted in their context, describe the type of vehicle which is to be captured by the definition of a “recreational vehicle.” That is, those words describe the type of vehicle that is “designed to be towed behind a motor vehicle or self-propelled,” rather than a vehicle that is used exclusively in that fashion. I consider that the definition of

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“recreational vehicle” has essentially three parts: the first part refers to the general design of the vehicles (i.e. it can be towed or self-propelled); the second part describes the types of vehicles included in the definition by reference to their common names (i.e. travel trailers, fifth wheels, camper trailers, pick-up coaches, motorized campers, motorized homes, “and other similar vehicles”); and the third part delineates the vehicles further by reference to their general purpose (i.e. a vehicle capable of providing temporary recreational accommodation for travellers). 

[40] Although the defendant says that the definition implicitly makes a distinction between recreational vehicles which accommodate the travelling public and those which are owner occupied, I conclude that this interpretation creates a distinction which is not supported by the language of the provision. The words relied upon by the defendant, used in their grammatical and ordinary sense, do not purport to distinguish between recreational vehicles depending on how recreational vehicles are actually used by members of the public, but rather they describe how such vehicles are designed to be used. 

[41] In that regard, I agree with the plaintiff that it is not plausible that the Regional District intended a vehicle, otherwise fitting the definition of recreational vehicle, to cease being a “recreational vehicle” as soon as it is no longer used by the owner or occupier for temporary accommodation. A recreational vehicle does not cease being a recreational vehicle because it remains in one location for an extended period of time. Its status, in my view, is not dependent on whether an owner or occupier of the vehicle decides to keep it in one spot or move it to another spot, or decides to store it for later use. In the latter regard, I note Bylaw 2400 refers to the storage of recreational vehicles, without any implication that such vehicles lose their status because they are not being used as temporary accommodation for the travelling public.

[42] While the defendant contends that the distinction between recreational vehicles that accommodate the travelling public and those that are owner occupied and remain on site “makes sense”, as the latter recreational vehicles are essentially

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“the same” as manufactured homes in all respects, this proposition is not supported by the definition of “manufactured home”. The definition of “manufactured home” expressly excludes “recreational vehicles”. Even in the absence of that express exclusion, such vehicles do not fit comfortably within the definition of “manufactured home”.

In this case, the definition of “mobile home” does NOT exclude “recreational vehicles.”

[43] A manufactured home is defined as a factory designed and constructed “dwelling unit”. A “dwelling unit” is, in turn, defined in Bylaw 2400 as one or more rooms in a detached “building”. “Building” is further defined as a “structure” intended to shelter any use or occupancy “but does not include a recreational vehicle”.

In this case, none of the defined terms – “structure,” “building,” or “dwelling unit,” exclude a “recreational vehicle.”

Further, as previously stated in my submission, the defined terms allow Z240 rated 5th Wheels as “dwellings,” “buildings,” and “structures,” as defined in Bylaw 355.

[44] The express exclusion of recreational vehicles from the definition of buildings, as well as manufactured homes, in my view, demonstrates the intention of the Regional District to distinguish between manufactured homes, which are buildings that are designed to be residences, and recreational vehicles, which are designed for temporary, recreational accommodation. 

[45] The defendant contends that the Savona Trailers meet all of the requirements stipulated in the definition of manufactured home, including the requirement to be a “dwelling unit”. I cannot agree that a plain reading of the definition of “dwelling unit” would allow me to conclude that a recreational vehicle is a “building”. Although I accept that building is defined in the Bylaw as a “structure”, a term which is not defined, this does not satisfy me that the defendant’s position, that a recreational vehicle is a type of structure, is correct. 

[46] The word “structure” takes its meaning from the context in which it is used, Auckland City Council v. Ports of Auckland Ltd., [2000] 3 NZLR 614 at 629-630. When the word “structure” is considered in the context of Bylaw 2400, it is apparent that it is used in its natural and ordinary sense to mean a building. 

[47] The evidence adduced at the hearing of the petition also refutes the defendant’s assertion that owner occupied recreational vehicles which remain on site are “the same” as manufactured homes. The evidence of the expert called by

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the plaintiff, Mr. George Humphrey, established that there are different certification standards for manufactured homes and recreational vehicles. The evidence also demonstrated that there is a significant difference in how the manufactured homes are constructed and connected to the land as compared to the Savona Trailers. The manufactured homes have a more permanent connection to the land, while the Savona Trailers can readily be moved to another location. 

In this case, “structure” is defined in Bylaw 355.

[48] I conclude that manufactured homes are designed and constructed for permanency and year round use, while recreational vehicles are generally designed as temporary accommodation, as is evident from the manufacturer warranties and related information about their use. 

[49] I note that the defendant’s expert, Mr. Collin Yaretz, gave evidence that, in his experience, people use recreational vehicles all year round. However, his evidence stopped short of saying that the Savona Trailers were designed to be used as permanent residences. Indeed he referred to modifications which could be made to make them suitable for year round use, which implies an original design for temporary accommodation.

In this case, the Z240 rating designates 4 season, or all year round, occupancy.

[50] The defendant’s contention that owner occupied recreational vehicles that remain on site are excluded from the definition of “recreational vehicle”, if it were accepted, would potentially have impractical or unworkable consequences. How long would an owner occupier have to keep the recreational vehicle on site in order to be entitled to remain in a MH-1 Zone? What would be the status of individuals who leased recreational vehicles from their owners but kept them on one site for the spring-summer season? When would the recreational vehicle become a “residence” – which is a stipulation in the definition of a “dwelling unit”? In my view, the definition of “recreational vehicle” should not be interpreted in a manner which would lead to uncertainty as to which recreational vehicles are “manufactured homes” and which are “recreational vehicles” for the purpose of Bylaw 2400. 

[51] Accordingly, for all of the reasons noted above, I conclude that the Savona Trailers are “recreational vehicles” and are not “manufactured homes” under Bylaw

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  1. The defendant’s use of Lot A as a site for the Savona Trailers is not a permitted use under Bylaw 2400.
  2. Is the defendant’s use of Lot A a lawfully non-conforming use, by virtue of Section 911 of the Local Government Act?

[52] Section 911 of the Local Government Act provides that a new bylaw may, in some circumstances, not apply to a pre-existing land use that does not conform to the new bylaw. A pre-existing use may be continued as a “non-conforming use”, provided that (a) the use was lawful at the time the bylaw was adopted, and (b) the use is not discontinued for a continuous period of six months after the adoption of the new bylaw. A use which has discontinued for a continuous period of six months after the adoption of the new bylaw becomes subject to the new bylaw.

[53] At the time Lot A was purchased by the defendant, the zoning bylaw in effect was Bylaw 940, which had initially been adopted in 1985 and remained in effect until 2012. Bylaw No. 1949 (“Bylaw 1949”), currently entitled a Bylaw to Regulate Manufactured Home Parks (previously a Bylaw to Regulate Mobile Home Parks), is incorporated by reference into Bylaw 940.

[54] The defendant does not dispute the validity of Bylaw 940, but does dispute the validity of Bylaw 1949. The defendant contends that the use of the Savona Trailers met the requirements of Bylaw 940 and that the requirements for mobile homes in Bylaw 1949 have no application as that Bylaw was not validly adopted.

[55] The plaintiff concedes that, if the defendant proves that the use of Lot A by the defendant conformed to the requirements of Bylaw 940 and, if necessary, any valid requirements of Bylaw 1949, then the defendant’s current use of Lot A for seasonal accommodation in the Savona Trailers is lawful as a non-conforming use.

[56] The plaintiff submits that both Bylaw 940 and Bylaw 1949 are valid, and that in order for the defendant to establish a lawful non-conforming use, it has the onus of proving that its use satisfied the requirements of both Bylaw 940 and Bylaw 1949.

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The plaintiff notes that, while Bylaw 1949 was last adopted on September 18, 2003, there were a number of earlier versions of that bylaw, dating back to 1978.

[57] I will first consider the application of Bylaw 940 and then consider Bylaw 1949 as it relates to the Savona Trailers.

Application of Bylaw 940

[58] Bylaw 940 divides the area comprising the Regional District into 33 different zones and prescribes permitted uses, as well as other matters, such as density, setbacks, parcel size, conditions of use, and parking within those zones.

[59] The zone established for mobile home parks is referred to as the MH-1 Zone. it provides as follows:

The purpose of this zone is to encourage a high standard of mobile home park development in appropriate locations. 14.1 PERMITTED USES The use of any parcel of land in this zone shall be in accordance with the provisions herein and any use of buildings, structures, or land not in accordance with these provisions shall be prohibited: (a) Mobile homes in mobile home parks; (b) Accessory buildings; (c) Accessory service buildings and structures related to the mobile home park, including a common storage area for the storage or recreational vehicles and boats; (d) One single family dwelling or mobile home necessary for the accommodation of the owner or operator; and (e) Parks and playgrounds. 14.2 MAXIMUM DENSITY The maximum density permitted in this zone shall be no more than 20 mobile homes per one hectare. 14.3 MINIMUM PARCEL SIZE The minimum parcel size for a mobile home park shall be 2 hectares. 14.4 CONDITIONS OF USE (a) The mobile home park shall comply with the requirements of the Thompson-Nicola Regional District Mobile Home Parks Bylaw adopted in accordance with Section 734(1)(i) of the Local Government Act.

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14.5 OFF-STREET PARKING (a)  Off-street parking shall be provided in accordance with the provisions of Section 3.7 of this Bylaw. (b) The number of parking spaced required shall be as follows: Use Parking Required  Mobile home in a mobile home park 1 parking space per mobile home space plus 1 additional communal parking space for every 4 mobile homes for visitor parking and 1 additional enclosed parking space for every 4 mobile homes for open tenant storage space Owner’s residential plot 2 parking spaces per dwelling unit

 

[60] The following terms, which are defined in section 1 of the Bylaw, have application to the interpretation of the MH-1 Zone, as well as the other zones in which mobile homes are permitted:

“Mobile Home” means a single family dwelling unit equipped with a water closet and a bathtub or shower, waste from which may be disposed of directly into a sewer or ground disposal, and manufactured as a unit or units intended to be occupied in a place other than its place of manufacture on a year-round, long-term basis. It may be designed with detachable towing gear and upon arrival the site, can be completed and ready for occupancy except for placing on foundations, connections of utilities and some incidental assembly. “Mobile Home Park” means land used or occupied by any person for the purposes of providing spaces for the accommodation of mobile homes and for imposing a charge or rental for the use of such space. “Dwelling, Single Family” means a detached building, used exclusively for residential purposes, consisting of one dwelling unit. “Dwelling Unit” means one or more rooms with self-contained cooking, eating, living, sleeping and sanitary facilities used or intended to be used as a residence for one or more persons.

In this case, no such detailed definition of “mobile home” is included in Bylaw 355.

[61] Recreational vehicles are referred to in the Bylaw as being permitted in certain zones, but “recreational vehicle” is not a defined term.

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[62] The defendant submits that the Savona Trailers meet the definition of “mobile home” in Zoning Bylaw 940 and otherwise comply with the requirements of the Bylaw. The defendant says that the Savona Trailers comply with the three requirements for a “mobile home” in section 1: they are a dwelling unit used as a residence; they are ready for occupancy except for placing on a foundation, connection of utilities and some incidental assembly; and they are intended to be occupied on a year-round, long-term basis. The defendant relies, in particular, on the evidence of Mr. Yaretz that the Savona Trailers “were built for year round, long term usage by intention of the manufacturer”. The defendant notes that there is no requirement that mobile homes in the MH-1 Zone meet Canadian Standards Association standards (CSA Z-240 ), except to the extent that Bylaw 1949 is found to apply to Bylaw 940.

In this case, there is a requirement that “mobile homes” have a “CSA Z240” rating.

[63] The plaintiff’s position is that the Savona Trailers are not mobile homes within the meaning of Bylaw 940 and that, in any event, the defendant’s use of Lot A exceeds the maximum permitted density under the Bylaw. The plaintiff also asserts that the defendant’s use of Lot A contravenes Bylaw1949 – which was referentially incorporated into Bylaw 940 when the latter was adopted.

[64] Turning to the first issue of whether the Savona Trailers meet the definition of “mobile homes” in Bylaw 940, I would summarize the criteria somewhat differently than the defendant. I consider that the definition contemplates that “mobile homes”:

  1. are single family dwelling units;
  2. have a water closet and a bathtub or shower, with waste disposed of directly into a sewer or ground disposal;
  3. are manufactured as a unit intended to be occupied in a place other than its place of manufacture on a year-round, long-term basis; and
  4. may be towed to the site and can be ready for occupancy after being placed on foundations and connected to utilities.

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[65] Applying a purposive and contextual approach to the interpretation of the Bylaw, and considering the evidence adduced at the trial, I am unable to find that the Savona Trailers are “mobile homes” within the meaning of Bylaw 940.

[66] First, I note that the term “recreational vehicle”, while not defined in Zoning Bylaw 940, is referred to in the Bylaw in contexts which suggest that it is distinct from a mobile home. For example, in the MH-1 Zone, certain “accessory” uses are permitted including “a common storage area for the storage of recreational vehicles and boats”. If the definition of “mobile home” included recreational vehicles, the latter would not need to have been separately referenced.

[67] Recreational vehicles are also referred to separately from mobile homes in the C-4 Recreational Commercial Zone. In the section of Bylaw 940 governing that Zone, there is a reference to the maximum number of recreational commercial strata lots which are comprised of “rentable unit strata lots”, “strata lots for Park Model manufactured homes” and “strata lots for recreational vehicles”. Similarly, in the C-1 Retail Commercial Zone and in the C-2 Service Commercial Zone, recreational vehicles and mobile homes are referred to separately.

[68] Second, as the plaintiff points out, in the LR-2 Lakeside Residential MultiFamily Zone there is a distinction between the number of parking spaces provided per “dwelling unit” and spaces provided in a communal parking area for “visitors, boats, trailers, or recreational vehicles”. That distinction implies that recreational vehicles are not “dwelling units” and, therefore, necessarily, not “mobile homes”. 

[69] Third, even if the Savona Trailers could be considered to be “single family dwelling units”, I am not persuaded, on the evidence, that they were “manufactured as a unit or units intended to be occupied in a place other than its place of manufacture on a year-round, long-term basis”. While Mr. Yaretz, expressed the opinion that the Savona Trailers were built for year round, long term usage by the intention of the manufacturer, this opinion is not supported by the manufacturers’ owner manuals, which Mr. Yaretz agreed were authoritative. Although the owner manuals for the various recreational vehicles differ, all of those in evidence contain

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statements to the effect that either the recreational vehicle is not designed to be used as a permanent dwelling or that it is intended to be used for recreational or seasonal use. As well, the warranties for the recreational vehicles, in all but one of the manuals in evidence, exclude the use of the recreational vehicles as residences or permanent housing.

In this case, a manufacturer’s manual is inconsequential given Bylaw 355’s inclusion of the Z240 rating in the definition of “mobile home.”

[70] For example, the vehicle manual for the Heartland recreational vehicle states at p. 72:

Your trailer was designed primarily for recreational use and short-term occupancy…Your trailer is not designed nor intended for permanent housing. Use of this product for long term or permanent occupancy may lead to premature deterioration of structure, interior finishes, fabric, carpeting, and drapes. Damage or deterioration due to long-term occupancy is not considered normal, and may under the terms of the warranty constitutes misuse, abuse, or neglect, and therefore void certain warranty protections.

[71] The Crossroads recreational vehicle manual states at p. 12:

Your unit is a recreational vehicle and not intended, nor manufactured, as a permanent residence…Remember, your trailer is not designed, nor intended, for permanent housing.

[72] The Forest River Travel Trailer/Fifth Wheel manual states at p. 6:

Use your new recreational vehicle responsibly. Your camper was not designed to be used as a permanent dwelling, but for short term and recreational use. If you intend to use your RV as permanent housing, be advised that it could cause premature wear on your appliances, furnace, water systems, carpet, drapes, upholstery, bedding and interior surfaces. This premature wear caused by permanent residency may be considered abnormal or abusive use, and could reduce or in some case void your warranty coverage.

[73] While the Fleetwood Revolution manual does not contain a warranty limitation on use, I note that in the Introduction to the manual, at p. 01-1, it refers to the recreational vehicles being designed for recreation and travelling:

Your motor home has been designed to provide you with years of carefree, pleasant travelling and vacationing…A good working knowledge of your motor home and how to care for it will help you enjoy many miles and years of recreational living. [Emphasis added.]

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[74] Significantly, although the Fleetwood manual acknowledges that the motor home may be used by some owners on a full time basis, the manufacturer does not represent that it is designed for such use, nor does it indicate that they are intended to be used as residences. Rather, the manual refers to the measures which should be taken by owners if they intend to use them on a full time basis.

[75] The thrust of the evidence before me is that recreational vehicles, as their name suggests, are manufactured for temporary, recreational accommodation and not for year-round, long-term occupancy. Although Mr. Yaretz gave evidence that his company sells 20-30 recreational vehicles to people who intend to live in them on a year round basis, this evidence is based on what others have told him and is not sufficiently cogent to support the defendant’s contention that such vehicles are designed and manufactured for long-term, year-round use. In any event, in my view, the definition of mobile home in Bylaw 940 should be interpreted objectively. The focus should be on how the manufacturers intended that the recreational vehicles be used rather than on how they may be used by individuals after they leave the factory. The manufacturers’ owners’ manuals provide best available evidence of their intention in this regard.

[76] Mr. Yaretz’s evidence was that he did not look at the owners’ manuals for the Savona Trailers and they were not provided to him before he wrote his opinion. I find that although Mr. Yaretz has considerable experience in selling recreational vehicles, he does not have any special expertise in the manufacture or design of such vehicles and, indeed, did not know that there were separate CSA standards for mobile homes and recreational vehicles.

[77] Fourth, I conclude that the Savona Trailers do not meet with the definition of “mobile home” in another respect. The Bylaw contemplates that the waste water from a “mobile home” will be disposed directly into a sewer or ground water. The evidence was that recreational vehicles, including the Savona Trailers, use holding tanks for waste and do not dispose of sewage directly into the sewage system or ground water. I agree with the plaintiff that meaning should be given to the word

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“directly”. The periodic disposal of waste from holding tanks does not constitute a direct means of waste disposal, as would occur if the water were connected to the waste disposal system.

[78] In my view, the stipulation that “mobile homes” are defined, in part, by the nature of their waste disposal system is consistent with the other stipulations in the definition, such as placement on foundations and connection of utilities, which contemplate that “mobile homes” have a permanent connection to the land. In the latter regard, I note that the Savona Trailers have not been placed on foundations. The defendant says that, unlike in other zones in Bylaw 940, the MH-1 Zone does not require that mobile homes be placed on a foundation. However, that the other zones do not incorporate the requirements of Bylaw 1949, which include the requirements that mobile homes obtain a building permit before siting, comply with the applicable bylaws and regulations, and meet the comprehensive requirements of CSA Z-240. I note that section 4.4.1 of the CSA Z-240 standard incorporates the provisions CSA Z240.10.1 relating to the anchoring of a mobile home.

[79] While my conclusion that the Savona Trailers are not “mobile homes” within the meaning of Bylaw 940 is sufficient to dispose of the defendant’s claim to a lawful pre-existing use of Lot A, Bylaw 940 stipulates that the maximum density shall be no more than 20 mobile homes per hectare. Lot A has five recreational vehicles and four mobile homes. The latter four mobile homes were on the property when it was purchased by the defendant in 2006. The evidence called by the defendant was that Lot A is .29 hectares, which would allow for a density of 5.8 mobile homes. As the plaintiff points out, this would appear to place the defendant in the position of exceeding the maximum density of mobile homes per hectare, even if the recreational vehicles could be considered “mobile homes”.

[80] In response, the defendant adduced the evidence of a BC Land Surveyor, Ms. Marissa Moore, who testified that, based upon a survey she conducted in 2013, the present natural boundaries for Lot A would add an additional 1.2 hectares to the

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title boundary established in 1956. She agreed that the property boundaries have not been changed as a result of the natural accretion which has occurred.

[81] Although the defendant may be able to claim a larger property boundary than currently exists, which may have allowed more mobile homes and accessory buildings, I consider the central issue before me in respect of Bylaw 940 to be whether the defendant can claim a lawful non-conforming use prior to the adoption of Bylaw 2400. The defendant has owned the property since 2006, but it did not seek to assert an increase in the size of the property, in accordance with the process for doing so, so as to comply with the density requirements of Bylaw 940.

[82] In light of all of the above, I conclude that the Savona Trailers were not a lawful use of Lot A under Bylaw 940 and, therefore, the defendant is not in the position to claim the benefit of section 911 of the Local Government Act.

Application of Bylaw 1949

[83] The plaintiff claims that the defendant’s use of Lot A does not comply with Bylaw 1949. The defendant challenges the validity of this Bylaw. Before considering the application of Bylaw 1949 to the Savona Trailers, I will first consider the validity of Bylaw 1949.

Validity of Bylaw 1949

[84] As noted above, Bylaw 1949 is referred to in Bylaw 2400 and Bylaw 940. Bylaw 2400 provides that it is a condition of use that the manufactured home park comply with Bylaw 1949. Bylaw 940 provides that it is a condition of use that a mobile home park shall comply with the requirements of the “Mobile Home Parks Bylaw adopted in accordance with Section 734(1)(i) of the Local Government Act”. The undisputed evidence of the plaintiff is that the section reference to the Local Government Act is a clerical error and reflected the previously applicable provision of the Municipal Act, R.S.B.C. 1996, c. 323. The accurate reference is to Section 604(1)(j) and (k) of the Local Government Act. It is also not disputed that the existing Mobile Home Parks Bylaw at the relevant time is Bylaw 1949.

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[85] Sections 694(1) and (1.1) of the Local Government Act authorize a regional district to establish “building regulations” for “the health, safety or protection of persons or property”, as well as for access for persons with disabilities, conservation of energy or water, and the reduction of greenhouse gas emissions. Subsections (j) and (k) of Section 694(1) authorize bylaws in relation to trailers and mobile homes, specifically, to:

(j) regulate the construction and layout of trailer courts, manufactured home parks and camping grounds and require those courts, parks and grounds provide facilities specified in the bylaw; (k) provide that a trailer or manufactured home must not be occupied as a residence or office unless its construction and facilities meet the standards specified in the bylaw;

[86] Bylaw 1949 regulates manufactured home parks. It establishes, inter alia: requirements in relation to the application and approval of permits for manufactured home parks; standards for manufactured home park design and layout; the provision of water, sewage, garbage and lighting systems in manufactured home parks; and the enforcement of the bylaw with regard to manufactured homes and manufactured home parks.

[87] The defendant challenges the validity of Bylaw 1949 on two related grounds. First, the defendant challenges Bylaw 1949 on the grounds that it purports to deal with matters which are not authorized under section 694(1)(j) and (k) of the Local Government Act. It argues that the stated purpose of Bylaw 1949, “to ensure the development of manufactured home parks in an environment appropriate for residential use”, goes beyond the authorized purposes for such bylaws in Section 694 of the Act. Further, the defendant says that the Bylaw exceeds statutory authorization by purporting to regulate such matters as the construction of manufactured homes, and the provision of garbage and sewage disposal services, and by establishing offences for activities, that the defendant says are outside of the scope of Section 694(1)(j) and (k).

[88] Second, the defendant argues that the Bylaw is, in substance, a zoning bylaw which was not adopted in accordance with the requirements for a zoning bylaw. The

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defendant contends that the regulations of matters such as permitted uses, height, density, storage and site areas, and ancillary buildings demonstrates that is a zoning provision.

[89] The plaintiff defends Bylaw 1949 on the basis that it regulates matters contemplated under Section 694 of the Local Government Act, and that it is not a zoning bylaw, in fact or in substance. The plaintiff submits that the Bylaw does not have the unique attributes of a zoning bylaw, which are the division of the territory of the local government into zones, and the differentiation in the regulation of the use and occupancy of lands and buildings depending upon the zone in which the land and buildings are located.

[90] Rather, the plaintiff submits, Bylaw 1949 is a building bylaw which regulates the use and occupancy of land and buildings within any zone in which Bylaw 1949 is applied. Specifically, it regulates all manufactured home parks, which is a matter that the Regional District is authorized to regulate under Section 694(1)(j) and (k) of the Act.

[91] Recognizing that the issues are related, I will deal first with whether the regulations of Bylaw 1949 purport to govern matters not authorized by Section 694 of the Act, and then with whether the Bylaw is, in essence, a zoning bylaw.

[92] As the defendant’s submissions regarding the validity of Bylaw 1949 involve questions of statutory interpretation, I adopt the purposive and contextual approach to statutory interpretation referred to above.

[93] Applying this approach to the interpretation of Bylaw 1949, I note that the preamble refers to the Regional District’s statutory authority to establish regulations for the “construction and layout of manufactured home parks and the provision of facilities therein”. I also note that the applicable statutory provisions, Sections 694(1)(j) and (k), are included in the Part of the Local Government Act which authorizes local governments to establish “Building Regulations”. Viewed in this context, it is evident that the primary purpose of these sections is to allow the local government to regulate the buildings contained in manufactured home parks, trailer

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parks, and camping grounds in a manner similar to its authority to regulate other types of buildings.

[94] In that regard, although the defendant contends that the stated purpose of the provisions governing manufactured home park design and layout standards in section 4.1 (i.e. “to ensure the development of manufactured home parks in an environment appropriate for residential use”) exceeds the permitted purposes of building bylaws set out in section 694 (1.1) of the Act, I consider the statement of purpose of Bylaw 1949 to be entirely consistent with the permitted purpose of such bylaws, that is, regulation for “the health, safety or protection of persons or property”. As a “manufactured home park” is defined in the Bylaw as land used for “accommodation” and a “manufactured home” is defined as “a single family dwelling unit”, the stated purpose of ensuring the development of such dwelling units in an environment appropriate to residential use is in keeping with the objective of ensuring manufactured home parks and manufactured homes are healthy and safe for those who use them.

[95] Even in the absence of the definitions in Bylaw 1949, I would conclude that the purpose for standards and regulations stated in section 4.1 of the Bylaw, to ensure their development in an environment “appropriate for residential use”, is consistent with the nature of a manufactured home park within the meaning of Section 694(1). Although the Local Government Act does not define “manufactured home park”, the reference to a “home” park contemplates a residential use.

[96] Further, I do not accept the defendant’s contention that the provisions of Bylaw 1949 regulating water, sewage, and garbage in manufactured home parks are beyond the scope of what is authorized under Section 694(1) of the Act. In my view, the enumerated authority to regulate the construction and layout of manufactured home parks, require the provision of facilities for manufactured home parks, and establish standards for manufactured homes, necessarily includes the authority to stipulate that there must be adequate water supply, sewage and garbage disposal in a manufactured home park. In my view,  the authority to require these systems  in

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order to obtain a permit for a manufactured home park is necessarily incidental to the regional district’s authority under Section 694(1)(j) and (k) to regulate manufactured home parks and to specify standards for manufactured homes.

[97] The defendant submits that there is no authority under the Act to prescribe such “services” for manufactured home parks. However, I observe that the thrust of the provisions in the Bylaw governing water, sewage and garbage systems is that they comply with “the requirements of the authority having jurisdiction” over them. The Bylaw does not seek to establish services or to establish, in a comprehensive manner, what those systems should entail. That is left to the responsible authority. I consider these provisions of Bylaw 1949, interpreted in the context of the underlying zoning Bylaws 2400 and 940, are consistent with the authority of the Regional District to regulate manufactured home parks as a form of residential development and, in particular, to ensure that such parks are constructed in a manner which provides for the health, safety and protection of their residents and their property.

[98] Finally, I do not accept the defendant’s position that the provisions in Bylaw 1949 regarding matters such as permitted uses, density, storage areas, ancillary buildings, and the creation of offences for violation of the bylaw are beyond that which is authorized under the Local Government Act. In my view, the regulation of these matters are consistent with the provisions of the zoning Bylaws governing such matters, and do not exceed what is authorized under the Local Government Act. As examples, I note the following: the “permitted uses” in Bylaw 1949 parallel the “permitted uses” for the MH-1 Zone in Bylaw 940; the maximum density is the same in both bylaws; the provisions in Bylaw 1949 which stipulate the appearance and size of tenant storage are consistent with the provisions of Bylaw 940 which stipulate that a common storage area is a permitted use for land in the MH-1 Zone; the provisions regarding ancillary buildings for common use in Bylaw 1949 are consistent with the reference in Bylaw 940 to “accessory service buildings and structures” for common use; and the enforcement provisions in Bylaw 1949 establish the same penalty for violation of the bylaw as in Bylaw 940. In my view, these are matters which all fall within the authority of the Regional District under Section 694 of

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the Local Government Act as pertaining to the construction and layout of mobile home parks and, with respect to enforcement of the bylaw, the general authority of the Regional District to enforce its bylaws found in Part 6 of that Act.

[99] The defendant also argues that Bylaw 1949 is, in substance, a zoning bylaw and was enacted without the public hearing requirements applicable to such bylaws. I do agree with the defendant that a bylaw does not have to refer to itself as a zoning bylaw in order to constitute a zoning bylaw: Capital Regional District v. Saanich (District) (1980), 24 B.C.L.R. 154 (S.C.). I also agree that the failure to comply with the procedural requirements of a zoning bylaw may render the bylaw void ab initio: Hornby Island Trust Committee. v. Stormwell (1988), 30 B.C.L.R. (2d) 383 (C.A.).

[100] However, I do not consider Bylaw 1949 to be, in substance, a zoning bylaw which requires the procedural hearing provisions applicable to such bylaws. It was not adopted under section 903 of the Local Government Act and, therefore, is not prima facie a zoning bylaw as defined in section 5 of the Act: Peters v. Chilliwack (District) (1987), 43 D.L.R. (4th) 523 (B.C.C.A.). More significantly, Bylaw 1949 does not purport to establish zones within the regional district or differentiate the use of land between zones. Bylaw 1949 simply regulates manufactured home parks wherever they are permitted by the regional district in its Zoning Bylaw.

[101] In that regard, Bylaw 1949 must be read together with zoning Bylaws 2400 and 940. The latter Bylaws establish the zones in which manufactured homes and manufactured home parks are permitted, including the MH-1 Zone. The zoning Bylaws incorporate Bylaw 1949 in relation to the MH-1 Zone, which the zoning Bylaws created, and require as a “condition of use” that a manufactured/mobile home park shall comply with the relevant Regional District Manufactured/Mobile Home Parks Bylaw.

[102] The defendant pointed to various decisions in which resolutions by municipal governments were held to be zoning bylaws in essence, and invalid without compliance with the procedural requirements for enacting a zoning bylaw. However, those authorities are distinguishable from the present case.

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[103] In Capital Regional District v. Saanich, the municipality voted to release the defendant companies from a restrictive covenant, thus allowing those companies to change the size of a project building within the zone. Mr. Justice Bouck described the municipality’s action as an amendment of a zoning bylaw without proper procedure, and found the prospective bylaw invalid. Bylaw 1949 does not purport to amend an existing zoning bylaw; it sets out a regulatory scheme governing the use of manufactured home parks which can be incorporated into zones established by validly enacted bylaws.

[104] In Gulf Canada Limited v. Vancouver (City) (1980), 31 B.C.L.R. 266 (C.A.), the municipality purported to establish, via a licensing bylaw, areas in the city where self-service gas stations could operate. The Court of Appeal reversed the ruling of the trial judge, finding that the bylaw was in essence a zoning bylaw since its effect was to “create zones within the city where the operation of self-service gasoline stations is permissible.” As noted above, Bylaw 1949 does not attempt to create zones within which certain uses are permitted; it operates uniformly in zones where it is applied.

[105] The defendant also refers to Fischer v. Van Dusen, [1997] B.C.J. No. 224 (S.C.). In my view, that decision does not assist the defendant. It dealt with a bylaw authorizing the municipality to enter into a housing agreement, which was struck down by Mr. Justice Hunter because the municipality had not amended the relevant zoning bylaw before adopting the housing agreement.

[106] Bylaw 1949, insofar as it regulates the design and layout of manufactured home parks and sets standards for manufactured homes, can be said to regulate the use of land. That does not, by itself, mean that it is a zoning bylaw. As the plaintiff points out, correctly in my view, other types of bylaws authorized under the Local Government Act, such as building bylaws, affect the use of land without attracting the procedural requirements of zoning bylaws.

[107] Accordingly, I find, that Bylaw 1949 is not a zoning bylaw and does not exceed the authority of the Regional District under the Local Government Act.

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Application of Bylaw 1949 to Savona Trailers

[108] I turn now to the issue of whether the use of the land for the recreational vehicles complies with the requirements of Bylaw 1949. I note that Bylaw 1949, as its name suggests, is directed at “manufactured home parks”, which are defined as “land used or occupied by any person for the purpose of providing spaces for the accommodation of two or more manufactured homes and for imposing a charge or rental for the use of such space”. “Manufactured home” has the same definition as “mobile home” in Bylaw 940. As I have already found that the term “mobile home” in Bylaw 940 does not include a recreational vehicle, I similarly find that a “manufactured home” in Bylaw 1949 does not include a recreational vehicle. 

[109] Given that Bylaw 1949 is not intended to provide spaces for recreational vehicles, it is not surprising that the Savona Trailers do not meet requirements in Bylaw 1949. For instance, section 3.8 requires that all manufactured homes must meet or exceed the CSA Z-240 or A-277 standards. The standards for manufactured homes and recreational vehicles are significantly different. The A-277 standard applies only to “factory built houses”. And there are two standards within CSA Z-240, one which applies to recreational vehicles and one which applies to manufactured homes. In my view, taking the above-noted purposive approach to the interpretation of this provision, as noted above, Bylaw 1949 is intended to regulate manufactured home parks and manufactured homes, not recreational vehicles. In my view, the only reasonable interpretation of the reference to the “CSA Z-240” in Bylaw 1949 is that the bylaw incorporates the standards in effect for manufactured homes. 

[110] While the Savona Trailers meet the CSA Z-240 standards for recreational vehicles, I accept the evidence of Mr. Humphrey that they do not meet the CSA Z240 standards for manufactured homes. 

[111] The defendant says that, even if the Savona Trailers do not meet the CSA Z240 standards for manufactured homes, the exclusion in section 1.6 of the Bylaw applies. The exclusion states that existing manufactured homes that do not meet the CSA Z-240 standards shall be permitted to relocate or move into any manufactured

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home park “if brought up to the Z-240 standards with respect to electrical service and if the gas and heating systems are in accordance with section 3.7 of the Bylaw”. The difficulty with the defendant’s reliance on this provision is that it is predicated on the assumption that the Savona Trailers are “manufactured homes” as defined. In any event, the defendant has not established the Savona Trailers were brought up to standards for manufactured homes with respect to electrical, gas and heating systems after the defendant brought them onto Lot A. 

[112] There is also no evidence that the defendant obtained approval to alter the manufactured home park as required by section 2.3 or have building permits as required by section 13.3, when the Savona Trailers were located on the property. Additionally, The evidence establishes that the Savona Trailers did not meet the setbacks or density requirements of Bylaw 1949 (and Bylaw 940).

[113] I conclude, therefore, that the defendant’s use of Lot A for the Savona Trailers was not in compliance with Bylaw 1949.

Tenting on Lot A

[114] The defendant has admitted that there had been “some use of Lot A for overnight accommodation in tents” during the time that the defendant has owned Lot A. However, the evidence of Mr. Ayres is that the defendant has not rented out space to campers since 2010. The defendant says, therefore, that no injunctive relief is warranted.

[115] The evidence of the plaintiff in relation to tents was that, on occasion, the neighbour, Mr. Dollimont, witnessed tents erected on Lot A and that one tent has remained set up in the same spot for the summer season. This tent was identified in the evidence as being used by the son of one of the recreational vehicle owners. It was erected directly adjacent to the owner’s recreational vehicle.

[116] I find that the evidence before me is insufficient to establish that the tents continued to be permitted by the defendant or its principals – other than the tent of the son of one of the recreational vehicle owners, whose tent was erected adjacent

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to the recreational vehicle. The existence of a single tent by a family member, in my view, does not justify the conclusion that the plaintiff is using Lot A as a campground. 

[117] That said, to the extent that Lot A has been used as a campground, this was contrary to the Regional District’s zoning bylaws. Clearly, this is not a permitted use under either Bylaw 2400 or 940.

  1. Is the plaintiff entitled to the relief it is seeking?

[118] The plaintiff submits that the Regional District is entitled to declaratory and injunctive relief. The plaintiff refers to Section 274(1) of the Community Charter, S.B.C. 2003, c.26, and Section 281 of the Local Government Act, which provide that a Regional District may, “by a proceeding brought in Supreme Court, enforce or prevent or restrain the contravention of …a bylaw”.

[119] Further, where a Regional District has established a breach of the bylaw on a balance of probabilities, the consideration of the remedy does not attract the usual analysis found at common law, because of the strong public interest in seeing that the bylaws of local government are effective and, where breached, are enforced: Langley (Township) v. Wood, 1999 BCCA 260. The court’s only role is to determine whether a defendant has breached the bylaw the local government seeks to enforce: City of Fernie v. Cameron et al., 2002 BCSC 762 at para. 30.

[120] The defendant concedes that the plaintiff is entitled to a declaration and injunctive relief in respect of the Savona Trailers, if I find that this use of Lot A does not comply with Bylaws 2400 and 940. 

[121] I note that my discretion to decline to issue an injunction to enforce a bylaw is very narrow and is reserved for exceptional circumstances. In my view, there are no such exceptional circumstances. Accordingly, based upon my conclusion that the defendant’s use of Lot A did not comply with Bylaws 2400 and 940, I conclude that the plaintiff is entitled to a declaration and injunction to this effect. 

2014 BCSC 1867 (CanLII)

Thompson-Nicola Regional District v. 0751548 B.C. Ltd. Page 31

 

Summary

[122] In summary, I have found that the plaintiff has established that the defendant’s use of Lot A is in breach of Bylaw 2400, that the defendant’s use of Lot A does not constitute a lawful non-confirming use under Bylaws 940 and Section 911 of the Local Government Act; and that the plaintiff, is therefore, entitled to declaratory and injunctive relief.

[123] Specifically, the plaintiff is entitled to:

  1. a declaration that the defendant is in breach of the Regional District bylaws by causing or permitting the property, known as Lot A, District Lot 400, Kamloops Division Yale District, Plan 77723, to be used contrary to the provisions of Thompson-Nicola Regional District Zoning Bylaw No. 2400, 2012;
  2. an injunction enjoining the defendant from using the property in a manner contrary to the provisions of the Thompson-Nicola Regional District Zoning Bylaw No. 2400, 2012 and, without limiting the generality of the foregoing, from using the property:
  3. in a manner which fails to comply with the permitted uses in Zoning Bylaw No. 2400;
  4. for the siting and use of recreational vehicles or recreational vehicles upon the property; and

iii.  for the operation of a campground, being the temporary accommodation of travellers in trailers, motorhomes, or campers.

[124] The parties may make submissions on the issue of costs, should they be unable to agree.

“Madam Justice Harris”

2014

 

 

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