BANFF – A resident fighting conditions of his bed and breakfast development permit has lost his appeal.
Lee O’Donnell wanted Banff’s Development Appeal Board to scrap a Municipal Planning Commission requirement that he register a restrictive covenant on title acknowledging he can only rent out three commercial rooms and must live on site when rooms are rented.
He also wanted more time to convince six neighbouring property owners on Deer Street to sign onto an agreement granting owners legal access to an informal roadway that runs across the rear of their properties backing onto Tunnel Mountain Drive.
“I’m uncertain as to the path forward for my family,” O’Donnell said during the DAB hearing last Thursday
(May 16).
The quasi-judicial board denied O’Donnell’s appeal, concluding the Municipal Planning Commission (MPC) has authority to put conditions on development permits and didn’t err in its application of the law.
David Bayne, the board’s chairperson, said there was no new information that provided the basis for the DAB to form different conditions or conclusions than MPC had in its decision on April 10.
“Mr. O’Donnell, these things are never easy,” said Bayne. “We’re sorry, but the law is the law.”
Rather than a restrictive covenant, O’Donnell argued a better way to deal with the compliance issue was through a statutory declaration, noting that there is still confusion amongst owners as to what live-in owner means.
“Say I’m a three-bedroom B&B owner and I want to go to Hawaii in November, can I not rent it out to eligible residents?” he said. “Say I’m stuck in a snowstorm or going to a friend’s house and not being able to get back there.”
The municipality’s view is to take a pragmatic approach if someone was caught in a snowstorm, for example, and would not shut down a B&B for something like that.
“But if you’re in Hawaii for a month and rent your B&B, yes, we’re going to take enforcement action,” said Darren Enns, the Town of Banff’s development services manager.
Three B&B homes were shut down last year for illegally renting out more bedrooms than allowed and/or failing to live on site. That led to several appeals, with claims by some owners that they didn’t know they were violating their B&B development permits.
Enns said the Town of Banff believed that by registering a restrictive covenant on title, B&B owners were acknowledging the ground rules and agreeing to abide by them.
“As long as everyone knows the rules up front, there really shouldn’t be a basis for appeal,” said Enns.
The road access agreement, which would make legal a road that’s been used informally for the better part of 70 years, was already part of the original development permit that MPC granted in February 2018.
A year after that permit was issued, O’Donnell hadn’t secured the access agreement with neighbours, telling DAB he had informal agreements with five neighbours but one was still holding out.
Last month, MPC granted him a six-month extension, with a possible additional six months if there were one or more B&B allocations under the quota still available in that land use district.
“I feel that is not enough time,” he told the DAB.
