Monday, May 27, 2024
May 27, 2024

B&B owner battles Trust bylaw enforcement

When Terri Potratz and her family purchased their Beddis Road property six years ago, it contained a primary residence and The Blue Ewe, a long-running Salt Spring bed and breakfast (B&B) in a separate cottage. 

Being able to earn income from the B&B made their move from the mainland financially feasible, she said.

But in 2021, Potratz received a bylaw violation notice (BVN) alleging her B&B was being operated as a “commercial guest accommodation unit.” While she was aware that the Salt Spring Local Trust Committee (LTC) had passed a resolution in 2019 to proactively enforce against short-term vacation rentals (STVRs), it seemed clear that she owned a legal B&B. She worked with bylaw officer Ethan Xu to achieve compliance, which seemed to be related to removing reference to a kitchen in her advertising to make it clear the B&B was not a self-catering unit.

However, the BVNs kept coming, and Potratz was confused. Communications from bylaw compliance and enforcement manager Warren Dingman did not seem to jive with Salt Spring Land Use Bylaw (LUB) 355 sections regarding home-based businesses and B&Bs. Section 3.13.8 states simply that: “all bedrooms used to accommodate guests must be located only within a principal dwelling unit or within a seasonal cottage, if one is permitted on the lot.”

The language is the same in the Trust’s own operator’s guide for B&Bs on Salt Spring, with even further detail that seems to confirm The Blue Ewe meets the requirements to operate legally.

However, Potratz said Dingman has insisted that at least one B&B bedroom must be within a property’s principal dwelling unit in order for the seasonal cottage to be used for B&B purposes. Potratz said that interpretation comes from the island’s previous LUB (#123), which dates back to 1985.  

Potratz said she knew “this was not just a case of me getting it wrong,” so she disputed the BVNs through adjudication provisions of the Local Government Bylaw Notice Enforcement Act (LGBNEA). Following a June 2, 2023 hearing, the adjudicator agreed with her position and Potratz assumed she could operate without fear of receiving more BVNs.

But that turned out to not be the case. She decided to use the Freedom of Information (FOI) system to determine if her file had actually been closed following the adjudication decision. The first response she received was missing the database that shows a case’s log of internal notes and updates, and so she requested the missing file. 

“When it was delivered to me later that day,” she explains in a Feb. 2. 2024 administrative complaint to Trust CAO Russ Hotsenpiller, which she was advised to make by the Office of the Ombudsperson, “I saw that on Nov. 9, 2023, three new BVNs had been simultaneously issued to us just 10 days after I filed the FOI request. This could be explained as a coincidence, except that the TAPIS database shows a June 21, 2023 entry noting ‘Ad still active. BN.’ This database entry that shows the Islands Trust believed we were operating unlawfully in June, yet no enforcement action was taken at that time. No action or communication occurred at all until I made the FOI request.”

Potratz also took her case directly to the LTC, speaking at two town hall sessions earlier this year. Then  at the March 7 LTC meeting, trustees went in camera with Dingman and it was decided that her enforcement file would be closed. No reason was provided. 

But despite that quite definitive action, all communication from the Islands Trust still seems to oppose Potratz’s position. In advising Potratz via email that the LTC had closed the file, Dingman noted, “If there are complaints against the unlawful operation, we will need to follow Trust Council policy and open a new file.” 

An Islands Trust response to a Driftwood query at about the same time also echos the Dingman interpretation Potratz received: “The regulations in Land Use Bylaw No. 355 are interpreted to mean that a bed and breakfast must be operated in an owner occupied dwelling and that bedrooms in a seasonal cottage can be used as part of the bed and breakfast operation being operated in the owner occupied dwelling.”

A detailed March 20 response from the Trust’s director of local planning services David Marlor to Potratz’ Feb. 2 administrative complaint also rejects each point made.

As well, Potratz has had to go through a second round of adjudication, with her case heard on March 22. A decision will be forthcoming.

Adding to the frustration is that enforcement against B&Bs using only a cottage for their operation has not been consistent.

“We are aware that many B&Bs similar to ours have been allowed to continue, while others have not,” she stated in her complaint to Hotsenpiller. “This disparity suggests a pattern of harassment against B&B operators like ourselves who voice their concerns. We have witnessed a climate of fear among B&B operators who have been permitted to continue their operations but prefer not to be identified due to apprehensions regarding retribution and attacks by IT Bylaw Enforcement.”

Peter Lloyd-Jones, president of the Salt Spring Accommodation Group, confirmed that other B&B operators have faced the same kind of enforcement process in the past few years, while others have not.

Some STVR cases may warrant violation notices, he said, “but there’s also been, we think, some overreach in terms of going after perfectly legitimate bed and breakfasts, which have either been operating for some time, or not, but are, in our opinion at least — and in the opinion of the legal profession — totally in compliance. This has caused some anxiety, I would say, amongst a lot of people.”

As of Dec. 31, 2023, Trust Bylaw Enforcement had 88 open files related to STVRs on Salt Spring, which was 44 per cent of total open bylaw investigation files for the island at that point.

“The accommodation group is concerned,” said Lloyd-Jones, “as are quite a few others, I think, about what’s been going on, because it doesn’t appear to us to be a solution to the issue; the issue being housing.”

On a positive note, he said, his group has had discussions with Trust staff and trustees Jamie Harris and Laura Patrick about the need for the land use bylaw to be updated for tourism accommodation, with the aim of ensuring Salt Spring’s visitor industry remains viable. 

“The bylaw was adopted in 2001, so it’s quite old and in need of revision,” he said. “We are looking at various options. The trustees are interested in bringing the stakeholders around the table to have discussions to come up with an arrangement which will be a win-win for the community.”

Lloyd-Jones said the accommodation group is very cognizant of the lack of affordable housing on the island, while stressing the importance of the visitor industry to Salt Spring’s economy. 

“There needs to be a balance that works for both sides: for workforce housing as well as for tourism.” 

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  1. Time for B&B owners to bring a legal action against this enforcement to clarify the law, which will enable an amendment if necessary. There is no clear public policy purpose for requiring a B&B to be in the main house.


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