A group of Whistler property owners have filed a legal petition against the Resort Municipality of Whistler (RMOW), alleging the municipality unfairly stripped them of their ability to rent out their homes as short-term tourist accommodations (TA). The petitioners, Alan and Lenore Gelfand and Steven and Katherine Nichols, claim the RMOW’s decisions were unreasonable, procedurally unfair, and ignored decades of historical precedent that allowed their properties to operate as TAs. They filed the petition March 4 in the Supreme Court of British Columbia.
The petitioners argue the dispute centres around two key decisions made by the RMOW: the “2022 Official Community Plan (OCP) zoning decision” and the “Tourist Accommodation (TA) decision.” These decisions reclassified the petitioners’ properties in Horstman Estates, a neighbourhood on Blackcomb Mountain, from a zone that permitted tourist accommodations through a warm bed policy to a residential-only zone, effectively banning short-term rentals.
The Gelfands’ and Nichols’ properties have been used for TAs since the 1990s, with the RMOW’s knowledge and approval. They claim the RMOW’s decisions not only disregarded historical zoning bylaws and taxes paid for tourist accommodation but also failed to provide proper notice or justification for the changes, violating procedural fairness.
A decades-long history of tourist accommodations
The Gelfands and Nichols own two properties in Horstman Estates, which they use as second homes and rent out to tourists when not in personal use. According to the petition, Horstman Estates was developed in the late 1980s under a previous legislative tool called a Land Use Contract (LUC). LUCs are contracts between the municipality and developers, and were used in B.C. throughout the 1970s and 1980s, similar to zoning.
Horstman Estates was part of the Blackcomb Land Use Contract. The LUC was unique because it explicitly permitted tourist accommodations in residential dwellings, even if they were not part of a rental pool covenant (a system where properties are managed collectively for rentals).
This was possible through what’s called the “warm bed policy,” found in the RMOW’s first amended Official Community Plan in 1983. In 2017, the RMOW passed Bylaw No. 2142, which recognized all the properties that were rented as tourist accommodation “with no rental pool.” This bylaw reaffirmed the warm bed policy and listed the petitioners’ properties as eligible for tourist accommodations.
Despite this, the petition notes the RMOW refused to issue business licenses for the owners. The owners continued to rent the houses, and the RMOW continued to bill and receive “payment of the Whistler Resort Association (“WRA”) commercial fees and Municipal and Regional District Tax (“MRDT”),” until they were ordered to stop in 2024.
Furthermore, in 1999, when five neighbours filed a civil claim against the owners of properties renting to tourists, a legal opinion was sought out by the Gelfands and the RMOW. That legal opinion, paid for equally by both parties, found a civil claim would likely fail. After this, the RMOW removed its support of the civil claim and continued to permit the parties to rent the properties as tourist accommodation until July 1, 2024 (the stop order).
The OCP zoning decision
Bylaw No. 2199 (the OCP) was first at council in 2018, and reclassified Horsman Estates as “residential-very low (detached),” which the RMOW does not recognize as permitting tourist accommodation. The bylaw was consolidated Oct. 5, 2022.
The legal counsel for the property owners argues the RMOW failed to notify the owners, stakeholders and public or clearly communicate the purpose of altering the zoning in 2018, the “RMOW violated section 466(1) and (4) of the Local Government Act” and did not adhere to procedural fairness.
After consolidating the OCP in fall 2022, the RMOW terminated the Blackcomb LUC, which governed Horstman Estates, and replaced it with RS3 zoning. Terminating the LUC was required after the province mandated all LUCs be replaced with zoning in 2014. In developing its rezoning policy for LUCs in 2016, the RMOW opted for a “like-for-like” approach, such that property owners wouldn’t notice a change in use.
Despite the desire for like-for-like zoning, the new RS3 zone explicitly prohibited tourist accommodations in Horstman Estates. Because the zoning was already amended in the OCP bylaw and banned TAs, it technically was “like-for-like.”
The TA zoning decision
The petitioners argue the decision was based on a misinterpretation and misuse of residential zoning definitions, applied a “selective definition” of which dwelling units permit tourist accommodation, ignored the history of permitted nightly rentals and failed to acknowledge the joint legal opinion from 1999.
In particular, during the public hearing for the TA decision, the petition alleges the RMOW’s director of planning and planning staff omitted critical facts, including the entire history of nightly rentals in Horstman Estates, deflected questions about the history of zoning for the neighbourhood, and claimed a 2017 report listing Horstman Estates as permitted for TA was an error. They also excluded the legal opinion from 1999.
Impact on petitioners
The petitioners say the loss of their right to rent out their properties has caused severe financial hardship. They estimate the inability to generate rental income has significantly reduced the value of their investments, and “materially altered the Petitioners property rights without due consideration of the financial consequences.”
In his sworn affidavit, Alan Gelfand said the impact on his elderly parents is causing them “significant distress.” His mother frequently asks if they will have to sell the home and his father has developed Bell’s palsy, “a condition directly related to stress.”
The petitioners are asking the court to reverse the RMOW’s decisions and restore their right to operate tourist accommodations. They are also seeking a declaration that the RMOW’s decisions were unreasonable and procedurally unfair, as well as an order requiring the RMOW to issue them business licenses for tourist accommodations and costs associated with the petition.
In response to a request for comment, the RMOW said it “does not comment on matters subject to ongoing or potential litigation.”
None of the claims have been proven in court. Check back with Pique as this story develops.
