A Kelowna bylaw aimed at setting limits on agri-tourism sites isn’t valid, according to a B.C. Supreme Court judgment released this week.
The bylaw came under fire when Surinder Khurana and Seema Khurana brought a lawsuit against the City of Kelowna for trying to control the way they rent out RV space on their orchard.
The Khuranas, according to the decision released March 14 by Justice Dev Dley, had been providing 10 RV campsites since 2008. At that time, farmers were struggling making ends meet and the city allowed farmers to supply short term accommodation for tourists on farms, orchards, or vineyards. Typical uses included but were not limited to seasonal farm cabins, and campsites/recreational vehicle sites.
By 2010, however, the number of these RV-friendly farms had grown to 14 and the city decided to implement rules to control both their growth and times of operation.
The bylaw increased the minimum lot area and restricted the number of rental units and the months during which rentals could be offered, and that meant the Khuranas were operating in contravention of it.
They successfully argued they never knew the rules had changed.
To change the bylaws on these agricultural sites, the city advertised they were proposing some “housekeeping” amendments to the bylaw.
In his decision, Justice Dley said the changes were more significant than just housekeeping and the city should have done more to keep the community abreast of the changes.
“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,” reads the decision.
“The average person would not conclude that housekeeping amendments would restrict the number of rental units or the months when revenue could be earned. Although the amendments to the bylaw were greater than as described in the Notice of Civil Claim, the statement of facts in the pleadings reveal significant changes to the bylaw – much more than “housekeeping amendments.” This was tantamount to the city advertising for a housekeeper when a renovating contractor was required,” read the decision from Dley.
The city had argued that the number of people who attended the first public hearing is an indication that the notice was sufficient.
“However, reliance on the number of people who attended the meeting brings a subjective element to the analysis,” said Dley. “The assessment of the adequacy of the notice is an objective analysis. An objective analysis leads to only one conclusion: The notice did not adequately state the purpose of the bylaw. The intent was to change the bylaw in substantial ways – not just for housekeeping purposes.”
If the city had instead stated that it was proposing amendments to the bylaw that would increase the minimum lot area, restrict the number of rental units and restrict the months during which rentals could be offered, Dley said that would have satisfied the statutory requirement.
“The average person reading such a notice would then be in an informed position to decide whether to attend the public hearing or seek further information about the proposed changes,” he wrote. “The essence of the notice requirement is that the content must be such that a meaningful and informed decision can be made by those affected by the proposed changes.”
The bylaw was deemed invalid and the city has to pay the Khuranas their legal costs.