March 2010 – Replacing Units in Mobile Home Parks

The law regarding mobile home parks that are non-conforming under current zoning bylaws has just been clarified in Stroshin et al. v. The City of Parksville (“Stroshin”). For some time, it has been unclear whether the occupiers of mobile home spaces in non-conforming mobile home parks could replace their older, smaller mobile homes with newer, larger mobile homes. In Stroshin, the Honourable Mr. Justice Wong denied the Petitioner the ability to replace older, smaller units with newer, larger ones on the ground that it would contravene section 911 of the Local Government Act (the “Act”). Indeed, Mr. Justice Wong went further than the position taken by the City of Parksville (“City”) and held that replacement units were not permitted by section 911 at all.

Facts

The Petitioners, the Stroshins, own and operate the Parksville Mobile Home Park, comprised of 73 mobile home units on 3 separate lots. Only one of the lots was zoned for mobile home use while the other two lots were zoned residential. The majority of the mobile homes (70 units) were on the 2 residential lots and were, therefore, non-conforming uses of those two lots.

The City had a policy permitting the replacement of mobile home units, provided that the square footage of a replacement unit was the same as the previous unit. The intent was to maintain the status quo pursuant to section 911 of the Act. However, most mobile homes installed prior to the adoption of the residential zoning were 12 foot wide mobile homes. Today such units are considered obsolete and currently units are manufactured as 14 foot or double wide mobile homes.

Ruling

In Stroshin, Mr. Justice Wong ruled on the following two issues:

  • Is the replacement of a 12 foot home with a 14 foot unit an increase in the “scale, extent or degree” of the non-conforming use contrary to section 911(6) of the Act?

On that issue, Mr. Justice Wong found in favour of the Petitioner and stated:

“…in my view, the replacement of a 12 foot home with a 14 foot home cannot be seen as impermissibly expanding the scale of the petitioners’ use of their lands for a mobile home park. At the end of the day, the lands will still be used as a “mobile home park”, with the same number of pads, and in the same manner as they always have been.”

  • Is a mobile home a building or structure under section 911 of the Act?

On this issue, Mr. Justice Wong found in favour of the City and determined mobile homes to be “structures” under the Act. He also found that to permit them to be replaced with a larger mobile home, or indeed any replacement at all, would undermine the underlying purposes of section 911 of the Act.

To determine the underlying purposes of section 911, Mr. Justice Wong relied on the rationale of the Ontario Divisional Court’s judgment, on appeal from the trial judgment in Haldimand-Norfolk (Regional Municipality) v. Copland (1993), (Ont. Div. Ct.) (“Copland”). The Divisional Court held that the general intention of zoning is to eventually eliminate non-conforming uses and replace them with permitted uses. The Divisional Court relied on an academic critique of the trial judge’s reasons in Copland. The critique drew the following analogy between removal and replacement in respect of mobile homes and buildings:

“Non-Conforming Uses and Regulatory Standards,” by J. Matera (1993) 2 D.M.P.L. 125 (July 1993):

In Copland, Forestall J. held that where the use of certain lands for a trailer had not changed, the owner was entitled to continue to exchange her trailer for increasingly larger ones, even after the enactment of a zoning amendment which presumably prohibited trailers of any size and thereby rendered the use as legal non-conforming. The Court held that the change in size of trailer did not amount to a change in use.

Based on this reasoning, an owner of a single family dwelling which happens to be a legal non-conforming use would be entitled to demolish and rebuild as of right a new single family dwelling of virtually any size … Meanwhile, an owner of a single family dwelling which conforms to the by-law must obtain at least a minor variance if not a rezoning to achieve the same addition or reconstruction, unless the proposed addition or reconstruction were to conform to current regulatory standards in the by-law …

… Forestall J. is quite right in saying the change in size of trailer did not amount to a change in use, but that is not the point. The question which the Court failed to ask is what controls exist to regulate the size and configuration of the structures and buildings serving a use which is rendered legal non-conforming.”

[Emphasis Added.]

That is, what would be the point of non-conforming legislation if it could be undermined by replacing a building or structure?

Conclusion

Stroshin is a good case for local governments seeking to regulate non-conforming mobile home parks in British Columbia. They have the following options:

  1. Permit the replacement of “same size” mobile homes. This may appear contrary to the decision of Mr. Justice Wong where he indicates replacements are “impermissible”. However, Mr. Justice Wong also stated that the City has taken a “reasonable position” in allowing replacements of the “same size” on the property. We would caution, however, that a neighbour who is opposed to the continuation of a nearby mobile home park may take action to force a local government to adhere to the clear principle expressed in Mr. Justice Wong’s judgment.
  2. Do not permit mobile homes to be replaced with units that are larger than the previous unit. Even though newer manufactured mobile homes are inevitably larger, if the local government seeks compliance with section 911 and wants the property to eventually be rezoned, then it should not allow the larger mobile homes.
  3. Do not permit any mobile home to be replaced at all, in accordance with the ultimate extent of Mr. Justice Wong’s reasons.

This case is now the leading authority on non-conforming mobile home parks and section 911 of the Act. The principles on non-conforming use will be applicable throughout Canada, except where bylaws have been adopted under a zoning power that permits local governments to make specific provisions for replacement of units in non-conforming mobile home parks.

 

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