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Councillor - Town of Blue Mountains

‘Grandfathering’ and the need for an STA Licensing By-law

The BMRA-STA Committee thought it might be helpful to our members and their neighbours to try to clarify what rights ‘grandfathered’ properties and businesses retain in Ontario when a municipality implements a change in zoning, as the Town of the Blue Mountains did to address the Short Term Accommodation (STA) problem in Feb 2008.

The formal/legal name for ‘grandfathered’ is ‘legal non-conforming use’. Note: This outline is just a layperson’s interpretation of the municipal law covering ‘grandfathering’ .

1. A change in zoning is an important mechanism municipalities can use to control ‘land use’ going forward in the future BUT, a ‘use’ that was lawful at the time the by-law was enacted cannot be prevented from continuing – as long as it continues to be used for that purpose. Once that use is abandoned or discontinued for a reasonable length of time (usually 6-12 months) or is used in lawful way (i.e. in the case of an STA, used by the owner as an ‘owner occupied’ dwelling or rented for periods longer than 30 days (i.e. seasonal or annual rental period), the ‘grandfathered’ use status cannot be reclaimed.

2. A property that qualifies as a ‘grandfathered use’ is still subject to all reasonable regulations that the province and municipality have re: fire code, property standards, and parking regulations, etc.

3. A LICENCING by-law has no similar grandfathering requirement! ALL businesses must obey the rules and regulations of a licensing by-law. That is why all towns and cities with universities/colleges chose to implement licensing by-laws too when they changed their zoning by-laws to limit the proliferation of more student housing in residential areas and the number of students in each student home (to control overcrowding). The only way to control grandfathered STAs and level the playing field for all STA operators is to implement a comprehensive licensing program.Otherwise, it is just business as usual!

The courts are very careful to preserve an individual’s property rights so a municipality must build a very strong case before taking the matter to court. There is a fine line between private interest and public interest. If a use becomes a proven nuisance that is seriously impacting a neighbourhood, it can be shut down/stopped but there are no exact standards of proof set out in law so how a judge is going to rule is unpredictable – even on appeal.

The best option for our municipality to mitigate and/or solve the ‘conflict of use’ between STA businesses and the surrounding residential areas is to implement a comprehensive Licensing by-law, with teeth. The rules have to be clearly outlined in this Licensing by-law (without the need to refer to other by-laws, which may be subject to interpretation) and it must be enforceable. If there is any wiggle room, this will be exploited. A poorly written and unenforceable licensing by-law would be a disaster for this community. The proponents will be trying to minimize any and all regulations as a matter of principal. Their goal is ‘profit’, whereas our goal is the long-term sustainability of our community, protection and safety of visitors/tourists, and support of the ‘public good’.

Please ask you friends and neighbours to take the time to read and become knowledgeable about this issue. We need their support to help residents who are being impacted by this uncontrolled business use on their streets, even if your neighbourhood is not directly affected at the moment. Without licensing, there could be a STA pop up and start operating on your street next. Right now it takes time to investigate and shut these places down through the courts (if they don’t voluntarily agree to do so). At least with licensing, this same STA operator can be fined for every day that he operates illegally without a license and payment of this fine can be added to the property taxes, if it isn’t paid.