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North Saanich wins injunction over unauthorized housing units

Ruling judge suspends injunction for eight months to help affected tenants
North Saanich won a long-running legal battle against a property owner who had constructed what a court called three unauthorized suites. One of the individuals living in the suite has what the ruling calls a mental disability.

A legal battle between a property owner and North Saanich over housing ended in favour of the municipality after more than a decade, but months may pass before it comes into effect for hardship reasons.

Justice Ardith Walkem ruled in favour of North Saanich, which had sought an injunction against Kenneth Mark Rawlins over property in the 9200-block of East Saanich Road.

The Supreme Court of British Columbia ruling identifies the address as the site of three dwelling units constructed without authorization: an unauthorized secondary suite on the lower level of the property’s main single-family dwelling; an unauthorized suite located in a separate building described as a guest cottage; and an unauthorized suite in another building originally permitted as a single-storey detached garage but now described as a carriage house.

According to the ruling, the individual living in the secondary suite of the main dwelling has a mental disability and lives in the suite rent-free in exchange for helping with yard work. Both the guest cottage and the main dwelling unit are also tenanted with a single parent with two children. It possesses the proper permits.

The ruling also identifies an accessory building currently under a stop-work order — which North Saanich alleges is under construction to create a dwelling unit — and a trailer/recreational vehicle located at the rear of the property with permanent service hook-ups. According to the ruling, Rawlins said neither the trailer nor the carriage house have tenants.

According to the ruling, the municipality sought an injunction to prevent the “continued occupancy of unpermitted suites on the property” and the decommission of those suites.

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The history of antagonistic dealings between Rawlins and the municipality dates back to July 2009, when North Saanich first contacted him concerning an illegal secondary suite. In April 2012, the municipality placed a notice on title for Rawlins’ failure to secure a building permit for turning the upper floor of the garage into one of the unauthorized suites described earlier.

In March 2021, North Saanich issued the work-stop order on the accessory building, followed by two municipal bylaw tickets.

On May 27, 2021, the district scheduled an inspection, but Rawlins denied access to the dwelling units, claiming that he needed to provide adequate notice to the tenants. On July 29, 2021, the municipality obtained an entry warrant and confirmed the existence of the non-permitted suites on Aug. 5, 2021. Efforts to resolve the conflict failed and North Saanich filed its application in April 2022.

The ruling describes Rawlins using what it calls a “self-help” approach following a “build first and seeks permits later” policy.

“He believed that the size of his lot and lack of affordable housing in North Saanich supported his creation of additional tenanted dwellings absent District permits,” it reads.

According to the ruling, Rawlins argued North Saanich is experiencing an affordable housing crisis and that he is charging low-to-moderate, below-market rents, adding that he has not increased the rents on the units for a “number of years for long-term tenants,” who would likely have to move, on the premise that he would have to raise rents if fewer available rental units were available.

According to the ruling, Rawlins argued that North Saanich’s Official Community Plan designates his property as multi-residential, “and if it was so zoned, would allow up to 23 residential units on the property,” according to the ruling. “As well, he argues that if the (property) was subdivided, given its size, upon subdivision it would be capable of being approved for a larger number of units, in different configurations.”

Walkem’s ruling, however, did not buy these arguments.

“OCPs are visionary planning documents that set out what land use could look like in the future, but they are not zoning bylaws, and they do not, on their own authorize land uses,” it reads. “The law is clear,” it reads later. Once the breach of bylaws is shown and the local municipality applies for an injunction, courts must grant the injunction, “barring exceptional circumstances.”

The ruling acknowledged that Rawlins “appears to have been motivated, at least in part, by laudable intentions in providing low to moderate cost rental units to his tenants” in pointing to the deal between Rawlins and the tenant with the disability.

“However, he did so fully aware he did not have, or had been denied, the proper permits and knowing he was in contravention of District Bylaws,” it reads. “This is unfortunate for his impacted tenants.”

Their uncertain fate rings throughout the ruling.

“Given the difficulty the tenants may face in finding alternative accommodation, and taking into consideration the hardship that will be experienced by the tenants, the operation of the injunction is suspended for a period of eight months regarding the (basement suite) and (guest cottage). During that time, if the parties wish to do so, it may be possible for them to reach an agreement which would allow (Rawlins) to bring some of the units into compliance.”

According to the ruling, the basement suite and the guest cottage, but not both, could be brought into compliance with current zoning and building bylaws. North Saanich prohibits carriage house conversions under current bylaws.

Black Press has reached out to both the District of North and Rawlins. Black Press has also spoken to one of the tenants living on the property, who did not wish to go on the record.

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