Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 24, 2022
CASE NO(S).: OLT-22-002196 (Formerly PL200395)
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Oro-Medonte Association of Responsible STRS
Subject: By-law No. BL 2020-073
Municipality: Township of Oro-Medonte
OLT Case No.: OLT-22-002196
Legacy Case No.: PL200395
OLT Lead Case No.: OLT-22-002196
Legacy Lead Case No.: PL200395
OLT Case Name: Oro-Medonte Association of Responsible STRS v. Oro-Medonte (Township)
Heard: March 22-30, 2022 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Oro Medonte Association for Responsible Shortterm Rentals | Bruce Engell and Chantal de Sereville |
| Oro Medonte Goods Neighbours Alliance | James Feehely |
| Township of Oro Medonte | Chris Williams and Meaghan Barrett |
MEMORANDUM OF ORAL DECISION DELIVERED BY SHARYN VINCENT ON MARCH 22, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Oro Medonte Association for Responsible Short term Rentals (“Responsible STRS”) appealed By-law No. 2020-073 which had been passed by the Council of the Township of Oro Medonte and amended existing zoning provisions with the intent of regulating short term rentals in response to the nuisance issues related to third party use of vacation rentals within established shoreline low density residential neighbourhoods.
2The “party houses” as described variously in the witness statements and oral evidence of the planning and lay witnesses, are single detached houses widely and broadly offered for rent via electronic platforms such as Air B&B, by non resident, absentee owners, or their rental management agencies, and which are fundamentally owned and constantly rented out solely for the purpose of commercial gain for periods as short as a day, but more typically, for three (3) days coinciding with a weekend. The disruptive rentals became a live issue in 2017 in the Township and subject of numerous reports to Council by staff.
3The Township takes the position at the hearing, that such activity constitutes a commercial use and therefore was never legal in a low density residential zone, and seeks to simply bring clarity to that assertion through the amending by-law which has been appealed by the Responsible STRS. The by-law before the Tribunal is the product of the study carried out by municipal staff under the auspices of s. 38 of the Planning Act, which empowers municipal Councils with the extraordinary and time specific authority to prohibit or pause existing land use permissions to allow the adverse impacts of same to be studied with a view to introducing effective mitigation measures through the zoning regime.
4The Appellants, STRS, contend that to use the authority under s. 38 of the Planning Act to pass an Interim Control By-law, requires that the municipality must have been of the view that renting detached dwellings for terms of less than those associated with a conventional rental lease, was in fact not strictly prohibited, nor effectively regulated by the in force zoning provisions or restrictions. This contention is succinctly captured in the third recital paragraph of By-law No. 2018-071, which is the Interim Control By-law (“ICBL”) initially passed by Council.
5The recital reads as follows:
And Whereas the Council of the Corporation of the Township of Oro-Medonte deems it desirable to enact an interim Control By-law to temporarily prohibit the use of certain lands, buildings, or structures related to the use of short term rental accommodations within all geographic areas of the municipality to allow the municipality to review and if deemed appropriate implement the findings of the said study;
6The ICBL By-law enacted reads as follows:
Notwithstanding the permitted uses and regulations of By-law 97-95, as amended, only those short term rental accommodations in existence as of the date of passing this by-law and used for such purposes are permitted to be maintained within the geographic boundaries of the Township of Oro-Medonte pending completion of the review study.[emphasis added]
For the purposes of this By-law, “Short term Rental Accommodation” is defined as “Short term Rental Accommodation’ means a dwelling or any part thereof that operates or offers three or more bedrooms as a place of temporary residence, lodging or occupancy by way of concession, permit, lease, license, rental agreement, or similar commercial arrangement for any period of 30 consecutive calendar days or less throughout all or any part of the calendar year. Short term accommodation shall not mean or include a motel, hotel, bed and breakfast establishments, hospital, or similar commercial or institutional uses.
7The ICBL was extended a further year, and in 2020, Council enacted By-law No. 2020-073, the subject of this decision, which created and introduced a new definition to By-law No. 97-95, as follows:
Commercial Accommodation” means temporary accommodations, lodging or board and lodging, or occupancy in any building, dwelling or dwelling unit, hotel, motel, inn, bed & breakfast, or boarding house by way of concession, permit, lease, license, rental agreement or similar commercial arrangement for any period of 28 consecutive days or less throughout any part of a calendar year. For the purpose of this By-law, Commercial Accommodation does not include Village Commercial Resort Units
8Prior to the clarifying definition in 2020, the term “Commercial Accommodation” had been introduced as a term only into the then existing consolidation of By-law No. 97-95 by way of a housekeeping by-law in 2015 dealing with a broad range of topics. The housekeeping by-law amended the definition of “dwelling unit” by adding the sentence
For the purpose of this By-law, a dwelling unit does not include any commercial accommodation or recreational trailer.” (italics signifying a defined term)
REASONS IN SUPPORT OF ORAL DECISION
9The Tribunal for reasons which will be more fully set out in this decision, granted the appeal and directed that By-law No. 2020-073 be rescinded as it did not represent good planning and was not in the public interest particularly as the cumulative evidence bore out, it could not in a timely and/or effective way regulate the serial, disruptive use of residential properties as party houses. Further, the amendment would have the very undesirable effect of rendering illegal, the benign, non contentious occasional rental by owner of the family cottage for example to family or friends or known individuals for annual cottage holidays of 1-2 weeks. This imbalance was completely contrary to the rational proffered to Council in support of the passage of an ICBL and the amendment before the Tribunal said to be the product of that study process. It was this imbalance, and in fact the unintended punitive impact upon the generally self policing, common place practice of cottage renters peacefully enjoying a lake country vacation, which drove the Tribunal to issue an oral decision with the hope that the Municipality would use the preseason timing to their advantage to bring a licensing By-law into effect to specifically target the disruptive uses. In the interim, the Tribunal was also mindful that until such time as this decision issues, the Municipality would continue to enjoy the protection afforded by the ICBL which remains in force and effect prohibiting the creation of any new STRs until this decision issues.
10The Tribunal’s reasoning was very simple in that, if as the Municipality asserted in their case strategy, the STRs, and in fact all residential rentals of detached units is illegal, there is nothing to prevent the Municipality from enforcing the existing zoning regime against the disruptive offenders and commercial operators. The language of By-law No. 2020-073 simply introduced a threshold of determination at 28 days, which would unintentionally capture the historically acceptable, bona fide 1-2 week cottage rental for the annual vacation which were not the disrupters subject of the study carried out pursuant to s. 38 of the Planning Act.
11It was on the basis of the commonly held opinions of all of the witnesses who spoke to the unintended implications of the amendment, that the Tribunal rendered its decision to allow the appeal as it concurred that it was not in the broader public interest, particularly given the oral and written evidence of the Township’s witness, Ms. Leigh, the Deputy CAO and Director of Development Services, and the author of ten or more reports to Council on the subject matter since 2017.
12As expressed in the Oral disposition by the Tribunal, it remains the concern, that having read and heard all of the evidence that not only would the amendment have created unintended consequences, it in fact would have introduced a new prohibition under the guise of a clarification, despite the assertions of the Township and the Alliance. Ms. Leigh did outline the study currently underway, and known to be under way throughout the community, wherein the matter of effectively regulating STRs is subject of study by consultants and will be addressed in the overall Official Plan review expected to be considered by Council in the fall of 2022.
13The Alliance supports and shares the position that short term rentals were never permitted by By-law No. 95-97 and through the evidence of their witness, cited and distinguished how, by way of example, the By-law prescribed provisions regulating bread and breakfast and Village Commercial Resort Units, as being instructive to the Tribunal as to how the underlying 1997 by-law, as amended in 2014, should be interpreted with respect to the commercial offering of accommodations. The Tribunal however remains persuaded that in fact, these examples are quite distinguished from the concern at hand, and the disrupters currently subject of Council’s efforts could not have been contemplated by the underlying by-law as such uses did not exist as an income generating commercial use until facilitated by the ever evolving range of electronic platforms that now permit the anonymous procurement of temporary, unsurveilled occupancy of residential premises as commercial venues, more akin to a hotel than a residence.
14For these reasons, the Tribunal agrees with the Appellants that the ‘clarification” brought through By-law No. 2020-073 attempts to unlawfully retroactively prohibit what in effect is a distinct commercial entity. The Township has advised through its evidence that the issue is subject of study and will be addressed in the Official Plan review mandated within the calendar year.
15The Tribunal agrees that the issue warrants such a course of balanced, thorough analysis and consideration with the appropriate regulations to flow from that proactive process.
ORDER
16THE TRIBUNAL ORDERS that By-law No. 2020-073 is hereby repealed.
“Sharyn Vincent”
SHARYN VINCENT
VICE-CHAIR
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.