The Village of Chase recently defeated a challenge to the validity of its Property Maintenance Bylaw by local business owners in Chase Discount Auto Sales Ltd. v Waugh, 2018 BCSC 2014. Mr. Justice Grauer of the B.C. Supreme Court dismissed the judicial review petition of the business owners and helpfully summarized the relationship between the bylaw powers and remedial action requirement authority of local governments provided by the Community Charter, SBC 2003, c. 26.
In the case, a local business located in the Village of Chase had been visited by a Village bylaw officer who subsequently notified the business via an Order to Comply that the property was in violation of the Village’s Property Maintenance Bylaw as it contained refuse in the form of derelict vehicles along with unsightly overgrown grass, weeds and shrubs. The Property Maintenance Bylaw includes “unlicensed, unused or stripped automobiles” in the definition of “refuse” and prohibits the accumulation of such refuse. The Order to Comply provided two weeks for the property to be brought into compliance, and stated that if compliance was not achieved in that timeframe then the Village may subsequently take remedial action to clean up the property, with the cost of such work being potentially the responsibility of the business owners.
Before the two week period expired, the business owners brought their judicial review petition challenging the validity of both the bylaw officer’s Order to Comply and of the Property Maintenance Bylaw itself. In particular, the petitioners argued that:
- Neither the bylaw officer nor the Village Council had the authority to impose remedial action requirements via the Property Maintenance Bylaw, and would only validly be able to take remedial action after complying with all of the procedures set out in the “Remedial Action Requirements” sections, 72 through 80, of the Community Charter, including holding a hearing and providing the owners an opportunity to seek reconsideration of any decision to impose remedial action; and
- The Property Maintenance Bylaw ought to be set aside because it is, in effect, a zoning bylaw passed without the appropriate procedure (including a public hearing) that applies to zoning bylaws under the Local Government Act — in particular, the petitioners argued that because the property is in a Village zone that provides for an automobile sales businesses, the Property Maintenance Bylaw essentially has the effect of prohibiting that use because even new vehicles that are offered for sale would fit into the definition of “refuse” under the bylaw that includes unused and unlicensed vehicles.
With respect to remedial action requirements, Grauer J. found that sections 8 and 64 of the Community Charter give the Village a fundamental power to pass a bylaw that regulates, prohibits and imposes requirements with respect to unsightly conditions and refuse, including derelict vehicles. Further, His Lordship found that section 17 of the Community Charter, which is under the heading “Ancillary Powers”, provides authority for a local government to take remedial action where it has required something to be done under its section 8 and 64 bylaw powers, and that this authority is not limited by, and can be exercised independently of the “Additional Powers” relating to remedial action requirements set out at sections 72 through 80 of the Community Charter. Citing paragraphs 102 through 110 of the decision in Kitimat (District) v Alcan Inc., 2005 BCSC 44, aff’d 2006 BCCA 75, Grauer J. found that the remedial action powers specified in sections 73, 74 and 75 of the Community Charter do not limit the authority provided by section 8, but rather add to it.
In regard to the argument that the Property Maintenance Bylaw is, in essence, a zoning bylaw, His Lordship did not accept the petitioners’ submission that the Bylaw would have the effect of prohibiting the business from having any unlicensed or unused automobiles on the property, even where they are new vehicles being offered for sale as part of the business. Grauer J. reviewed the context of the Community Charter and all of the provisions of the Property Maintenance Bylaw and found that vehicles would only become “refuse” under the bylaw where they had become waste:
“ As I read the definition of “refuse”, it does not mean that all “unlicensed, unused … automobiles” are refuse, any more than it means that all “trailers, boats, vessels, machinery, tools, equipment, mechanical or metal parts” are refuse, or that all “furniture” and “appliances” are refuse. The PM Bylaw is intended to regulate property for the purpose of “preventing unsightliness on real property”. Read contextually, these items become refuse when they are in such a condition as amount to waste. As suggested by section 6 of the PM Bylaw, such items will not constitute “refuse” to the extent they are stored in a manner permitted by the Zoning Bylaw. It will be recalled that the Zoning Bylaw does not permit outdoor storage or display that would include an Automobile Wrecking Yard, which would cover an area outside of an enclosed building where vehicles not in operable condition are stored.”
In the result, His Lordship found that the bylaw definition of “refuse” does not prohibit an otherwise permitted use nor prohibit the petitioner from displaying non-derelict automobiles for sale, and noted that if the Village had attempted to apply it that way (which they did not), such an attempt would fail.