The numbered corporation the Islands Trust says owns two luxury vacation rental properties — and a popular retail farm stand — on Salt Spring Island is the target of a new lawsuit filed in B.C.’s Supreme Court Friday, July 28.
The Salt Spring Island Local Trust Committee (LTC) took legal action with a notice of civil claim against the registered owner of 600 Walker’s Hook Road and the adjacent waterfront property, alleging both are the site of short-term vacation rentals (STVRs) in contravention of the property’s zoning.
The parcels, which together total some 24 acres, are zoned A1-Agricultural, according to Islands Trust land use maps, which also show them located within the provincial Agricultural Land Commission’s protected Agricultural Land Reserve (ALR).
At the address is the Hen and Hound Farm, which through its website and AirBnB.com advertises an upland cottage and waterfront yurt for rent.
Owners Jason and Rochelle Roy-Allen provided the following written statement to the Driftwood:
“Although these matters have been settled in Islands Trust’s biased form of ‘appeals court,’ they continue to pursue unfounded and inequitable claims, which have been brought to the attention of this publication to defame our farm, our family and our businesses.
“The Hen and Hound Farm is one of many small family-run businesses here on Salt Spring who have been harassed by this public body meant to protect the environment and our community.
“Our investment in this island community is great and our conviction to lead with kindness, innovation and commitment to betterment has come to a head in this Islands Trust initiated claim against our farm. We believe this to be a ridiculous waste of tax dollars.
“We welcome an unbiased court’s opinion on the matter, and look forward to setting precedents which positively protect this island and its people. We will not be bullied; we will stand up for this island and everyone on it.
“See you in court Islands Trust — you picked the wrong Farm.”
For its part, the LTC alleges in its notice of civil claim that in addition to land use contraventions, the deck upon which the waterfront yurt sits is closer to the ocean than would be permitted, and that the farm stand structure — and its two flights of stairs — lies closer to the roadway than allowed; neither received a building permit before construction.
The LTC is seeking a court order requiring the owner to stop offering use of the STVRs — which, it has said, are not a permitted use in any residential zones — and physically remove offending decks, stairways, the upland farm stand structure and presumably the yurt.
As the land use authority on Salt Spring, the LTC provided little background in its civil claim, other than an assertion that it had demanded the owners cease the contraventions and that they had not complied. But while the LTC rarely offers specific details on land use infractions in open public session, the same cannot be said for the Capital Regional District (CRD) — which administers building permits on Salt Spring Island upon approval by the LTC, and which responds to building code bylaw complaints.
CRD building inspectors have documented their attempts to, as one report phrased it, “persuade the owners to comply” with building regulation bylaws since a July 2020 public complaint, after which a Stop Work Notice was posted for “construction without permits” of a large deck near the water — which staff at the time said appeared to be constructed to support a yurt.
At a hearing in December 2022, a report to the CRD’s Electoral Areas Committee noted that yurt was subsequently installed and “used as a rental accommodation,” still without permits or approvals. Online reviews for the two rentals, which are listed at $350 and $550 per night before fees, go as far back as early 2021.
The “large stair and farm stand structure” has been on the CRD’s radar since November 2021, according to another report presented at the same hearing, again for construction without permits but with the added concern of the encroachment onto the Ministry of Transportation and Infrastructure (MoTI) right-of-way along Walker’s Hook Road.
“Although the owner has written to say that he has applied to MoTI for approval and that he will then follow up with Islands Trust, to date these approvals have not been received,” said chief building inspector Mike Taylor at the December hearing, “and a building permit application has also not been received.”
The CRD Electoral Areas Committee voted unanimously to file a bylaw contravention notice on both properties’ titles; such notices, registered with the provincial Land Title Office, can sometimes negatively affect a property’s potential sale, perceived property value, access to a mortgage, or financing, according to the CRD. The owners did not attend that hearing.
STVRs differ from B&Bs, says LTC
STVRs are distinct from “bed and breakfast” operations in Salt Spring’s land use bylaw, the latter being a commercial use which is conditionally permitted in several island zones, including A1; among other restrictions, bed and breakfast businesses within A1 zoning must locate guest bedrooms within a principal dwelling unit.
Despite the LTC’s standing resolution to proactively enforce against STVRs where not permitted, legal action is relatively rare; notable exceptions include one in 2019, which came just a day after the standing resolution was passed. The LTC took the owner of an Upper Ganges Road property to court; that STVR, which also was operated on land not zoned for that use, had been the subject of numerous complaints dating back to 2017, according to trustees.
Islands Trust bylaw compliance and enforcement officer Warren Dingman told the LTC in April that his investigations suggested that among the roughly 250 advertised STVRs on Salt Spring Island, about half represented an unlawful operation.
During a quarterly summary of compliance and enforcement files, Dingman told Salt Spring trustees some property owners simply did not voluntarily comply with bylaw violation notices (BVNs), and legal action sometimes needs to be considered to resolve “ongoing contraventions on multiple properties.”
“While the majority of property owners pay, dispute and pursue adjudication, or enter into compliance agreements in response to BVNs, some of the BVNs are ignored — and there is a default and debt created,” according to Dingman. “The nonpayment of penalties for violation notices is placed on property titles, and the debt is usually collected during a future sale [of the property].”
The LTC’s priority on enforcing against STVRs was prompted by concerns about the lack of housing options for long-term rentals on Salt Spring; Dingman has said his department would be doing another survey during high season to hopefully capture information about any new unlawful rentals entering the market.
Salt Spring’s land use regulations — Bylaw 355 — can be read in detail at on the Islands Trust’s website.