HIGHLIGHTS
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A Justice of the Supreme Court of British Columbia has held that amendments to an agri-tourist accommodation Bylaw are invalid. Orchardists who farmed within Kelowna city limits had, over a period of 10 years developed 14 RV pads which were permitted under Kelowna's agricultural zoning Bylaw as agri-tourist accommodations. The City attempted to amend this Bylaw in 2017 by restricting the number of RV units which would be permitted and by limiting the months during which agri- tourist accommodations could be offered to April 1 to October 31. The City gave notice of public meetings to consider the Bylaw amendment, however the City's notice described the amendments as "housekeeping amendments". The Court concluded that the amendments were significant, and much more than "housekeeping amendments". An action commenced by the City against the farmers was dismissed, and the City's Bylaw was declared void, because adequate notice of the purpose of the public meetings had not been provided. (Kelowna (City) v. Khurana, CALN/2018-010, [2018] B.C.J. No. 443, British Columbia Supreme Court)
NEW CASE LAW
Kelowna (City) v. Khurana;
Full text: [2018] B.C.J. No. 443;
British Columbia Supreme Court,
S.D. Dley J.,
March 13, 2018.
Agri-Tourist Bylaws -- Notice of Proposed Bylaw Amendments -- Adequacy of Notice.
Surinder Khurana and Seema Khurana (the "Khuranas") owned an apple orchard within the City of Kelowna (the "City").
In 2008 the Khuranas built 10 RV pads on their property. By 2010, they increased the number of these RV pads to 14. The City's zoning Bylaw No. 8000 which was then in force permitted tourist accommodations in orchards as a secondary use and allowed RV pads.
On September 21, 2017, the City amended Bylaw 8000. The effect of this amendment was to permit "agri-tourist" accommodations only between April 1 and October 31 each year. Agri-tourist accommodations between November 1 and March 31 were prohibited. The amendments also made changes to limiting lot sizes, and restricting the number of RV lots.
The City commenced an action against the Khuranas seeking declarations that the Khuranas' use of their property contravened the amended Bylaw. The Khuranas argued that the City did not provide proper notice of its intention to change the prior Bylaw and that the amended Bylaw was invalid.
The City had published the following notice with respect to the Bylaw amendment:
The City of Kelowna is proposing housekeeping amendments to City of Kelowna Zoning Bylaw No. 8000 with respect to general definitions, agri- tourist accommodations and the A 1-Agriculture 1 zone.
Although public hearings were held in response to the notice, the Khuranas were not aware of the proposed amendments and did not attend any hearings.
Section 641(1) of British Columbia's Local Government Act, R.S.B.C. 2015, c. 1 requires municipalities to hold public hearings before adopting zoning Bylaws, and to give notice of the public hearing. Section 466 states:
- If a public hearing is to be held under section 464(1), the local government must give notice of the hearing
- in accordance with this section,...
(2) The notice must state the following:
(c) in general terms, the purpose of the bylaw;...
Decision: Dley, J concluded that the amendments were invalid [at para. 23].
Dley, J discussed the leading British Columbia case, Peterson v Whistler (Resort Municipality) (1982), [1982] B.C.J. No. 1751 (BCSC), 39 BCLR 221 [at para. 14] and the decision of the British Columbia Court of Appeal in Great Canadian Casino Co. v. Surrey (City), [1999] B.C.J. No. 2495, 1999 BCCA 619, which endorsed the approach taken by the Court in Peterson [at para. 15].
Dley, J concluded [at para. 16] that the narrow question "is whether average citizens would have been reasonably notified of the purpose of the bylaw by the notice".
Dley, J concluded that the description of the proposed amendments as "housekeeping amendments" was not sufficient to warn the average person that the amendments would restrict the number of rental units or the months when revenue could be earned, stating, at para. 17 to 19:
- The whole of the notice must be read in conjunction with the proposed bylaw. The notice clarified the amendments to the existing bylaw as being housekeeping amendments. Would the average citizen reading that notice come to the informed conclusion that he or she should attend the public hearing because the proposed amendments might affect them? I think not.
- Housekeeping is the descriptive term
for the purpose of the bylaw. The Meriam - Webster Dictionary, 2018
sub verbo "housekeeping", provides the following
definitions of "housekeeping":
- the management of a house and home affairs
- the care and management of property and the provision of equipment and services (as for an industrial organization)
- the routine tasks that must be done in order for a system to function or to function efficiently.
- None of the meanings attributable to "housekeeping" accord with anything other than routine tasks to generally maintain the status quo, although that may require some reorganization or movement of things. Thus, the average person upon being advised that a bylaw was to undergo some "housekeeping amendments" would likely conclude that sections might be re-numbered, moved or re-phrased so as to bring clarity or better organization to the document. The average person would not conclude that housekeeping amendments would restrict the number of rental units or the months when revenue could be earned.
Dley, J further commented [at para. 20] that the significant changes to the Bylaw were much more than "housekeeping amendments" and that the changes were "tantamount to the City advertising for a housekeeper when a renovating contractor was required".
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