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Award-winning Banff B&B shut down

“The appellant has the option of either advancing to the Court of Appeal if they wanted to do that, or there’s obviously a mechanism within the land use bylaw for reapplication as well."
20220731 115 Spray Avenue in Banff -real estate story (B_B) JH 0001
The B&B permit for 115 Spray Avenue in Banff has been revoked. JUNGMIN HAM RMO PHOTO

BANFF – Banff’s Development Appeal Board is sending a clear message to bed and breakfast operators in the tourist town – follow all of the rules and regulations if you want to keep your business licence.

For the second time in as many years, the quasi-judicial DAB has denied an appeal by an applicant fighting to keep running their B&B home. In this most recent case, the Town of Banff revoked a permit on June 20 for renting an unauthorized room as commercial accommodation.

The board was told there were two complaints in the past three months about the 115 Spray Ave. B&B, a higher-end home that made the top 10 list of VRBO’s 2022 Vacation Homes of the Year. The first complaint triggered an investigation and the second complaint came during the appeal process.

“The board takes the position that the evidence indicates that the operation of the bed and breakfast is not in compliance with the land use bylaw, which supports the decision to revoke the development permit,” said Ray Horyn, DAB chair.

The B&B’s development permit allows for the operation of four rooms on the upper level as commercial accommodation.

However, through online advertising photos and visitor reviews, the municipality found a master bedroom on the main floor dedicated for the exclusive use of a live-in owner under the conditions of the permit was also commercially rented on at least two occasions.

Emma Sanborn, development planner for the Town of Banff, said photos and an online review on VRBO (Vacation Rental by Owner) indicated the room was being advertised for rent.

She said that also means the room was not used by the live-in owner, adding live-in owners are a requirement under the land use bylaw and conditions of B&B home development permits.

“The corroboration of the online evidence leads administration to believe that more and different bedrooms were being operated than permitted on at least two occasions,” she said.

But B&B owner Robert Wilson said in the case of the online review in 2019, he had made a compassionate decision to rent the lower level bedroom to an elderly person with limited mobility.

He said this is the only time this has happened, noting he locked one of the upstairs bedrooms so there was only access to four bedrooms as outlined in his permit and went to stay with his mother.

“I was there on the property, the family showed up, they had an elderly woman who couldn’t negotiate stairs properly, she had a walker, and they asked if we had a main floor bedroom,” he said.

“I offered her the main floor bedroom… it was an on-the-fly decision that I believe was reasonable and the right thing to do. I think any of you would have done that just for the safety of the guest.”

Wilson said he rents out four rooms only, adding there is no mention anywhere on the VRBO listing that rooms shown are rooms that will be included in a rental.

“I’m renting bedrooms for a substantial sum and the goal is to basically show the character of the house and the quality of the house for what they’re getting,” he said, noting the nightly rate is $2,900.

“If I would have known that we can’t show those pictures online, I certainly would have taken them off.”

Following the most recent complaint, there was a site visit to the B&B home from Sanborn and development compliance officer Rick Williams on July 16.

Sanborn said a young man who answered the door indicated he had never met the owner who was not present because they were renting the entire house.

However, she said the mother then came to the door and said Wilson was around and they planned to play golf with him later that day.

Sanborn said in a phone call she and Williams made following the site visit, Wilson indicated the visitors were friends, and therefore their stay was not considered a rental.

“So there were three conflicting stories that we heard at that site visit,” she said.

Wilson said the B&B has never received a warning or had its licence revoked in more than five years of operation.

He said this revocation came without warning or any attempt to understand the situation outside of a single line within a public review on the VRBO platform.

“I had never received any warnings prior to this in my entire business licence history. I’ve never received any complaints and I was never informed of this infraction,” he said.

“I would have preferred the Town of Banff to call me and discuss this before simply taking my licence away.”

Sanborn said there has been a history with this B&B operation, including two informal complaints that led to a site visit in 2018 from the Town’s development compliance officer.

She said the officer’s enforcement report outlined his discussions with the owners about requirements of the permit, including the rules mandating a live-in owner.

“(There was a) note from that compliance officer that he was not convinced that that was the case,” said Sanborn.

“At that time, there was not enough evidence to bring forward a revocation as was done on June 20.”

Sanborn said the B&B application process is one of the most rigorous in the planning and development department, equipping applicants with a great deal of knowledge about the regulations, including number of authorized rooms and live-in owner rules.

“This is reinforced by the annual renewal process at MPC where B&B owners declare that they are operating as per their approval,” she said.

The DAB heard Wilson has an on-site manager on salary who is at the property when the owners are not there.

However, Sanborn said that is not allowed for a B&B home, just a B&B inn.

“It’s very important that the live-in owner is on-site for every rental of the year because a B&B home is the primary residence of that live-in owner,” she said.

However, Wilson pointed to conditions of his written development permit, which indicated his bed and breakfast home shall be operated exclusively by a live-on owner, or an on-site manager.

Sanborn said she noticed this anomaly two days before the DAB hearing, adding it was likely an oversight of the issuing development officer in 2016.

However, she said that condition is non-compliant with the land use bylaw.

“So that condition of the permit would not be valid even though an error appears to have been made,” she said.

“It’s a surprising thing for me to hear today that based on all the renewals, the onsite visit that focused on having live-in owners onsite, that this is possibly a point of confusion."

That particular land use district is already full under the B&B quota system, meaning the allotment would be advertised and a lottery conducted if there is more than one application. The existing B&B owner could reapply for a development permit.

Darren Enns, the director of planning and development for the Town of Banff, said the board’s decision is not final until the written decision is provided, which is expected to be released on Thursday, Sept. 1.

“The appellant has the option of either advancing to the Court of Appeal if they wanted to do that, or there’s obviously a mechanism within the land use bylaw for reapplication as well,” he said.

Lee O’Donnell, a local B&B Inn operator who sat on the B&B working group, said he was concerned the Town of Banff could revoke a licence without a conversation first with the owner.

“All business licensees, regardless of the licence type, should be concerned if somebody posting a review online that’s not necessarily qualified is the only cause and reason and the power needed to revoke your licence and potentially take your livelihood away,” he said.