Oh what a tangled web we weave, when first we practise to mislead.
After reading Mr. Doyle’s article, “Lawyer alleges Oro-Medonte misleading public about short-term rentals,” I thought that providing a few more facts might help readers identify who is doing the ‘misleading’.
In the article we are told that a short-term rental (STR) operator who is a lawyer claims that STRs are permitted in residential zones in Oro-Medonte and therefore, the township has no legal right to enforce their closure. To reach this conclusion, the STR operator relies, in part, on an Ontario Land Tribunal (OLT) ruling that quashed a zoning by-law amendment. The ‘clarifying amendment’ merely defined a ‘commercial accommodation’, a use that was specifically not permitted in residential dwellings.
By relying on the OLT decision to try and make the case that STRs are permitted in residential zones, two very significant facts have been ignored. First, the OLT ruling is currently the subject of an appeal. A Superior Court judge has already determined that the OLT ruling contains fundamental errors in law. Taking statements from the OLT ruling before the appeal is finally decided, can be deceptive and very misleading to lay people, but not to lawyers. Lawyers know better.
Secondly, and critically important, is the fact that regardless of the eventual outcome of the appeal, the OLT ruling does not affect the validity of the underlying zoning by-law. Under the zoning by-law, STRs are still a commercial land use, not a residential one. Therefore, STRs continue to be prohibited in most residential zones.
This conclusion was first announced publicly in October 2019 by a retired planner. The retired planner spoke at a public short-term rental session organized by homeowners held at Lakehead University. Following the ‘Lakehead Session’, the Township retained very experienced legal counsel who are specialists in municipal law.
With the benefit of their advice, the Township reached the same conclusion. STRs are not permitted in most residential zones. This conclusion was published by the Township in July 2020 in connection with a public meeting and is currently summarized on the Township website:
“It is important to understand that under Zoning By-law 97-95, short term rental accommodations are not legally permitted within the majority of areas/zones throughout the Township.”
So who is trying to mislead us?
The current tangled of web of misdirection likely began in 2017. That’s when an STR operator told members of Council what he was doing was legal. He also claimed that he would suffer damages if Council tried to shut him down.
In September 2018, an STR operator told Council that his STR was not a problem because he vetted his ‘guests’. If you speak with the neighbours, they will tell you a very different story. After too many sleepless nights, speeding cars and risqué parties, homeowners came forward and reported the frequent conflicts to the Township. Although some witnesses felt intimidated and didn’t come forward, several homeowners eagerly await their opportunity to testify under oath as to the fundamental incompatibility of STRs operating in residential zones.
STRs are not a problem? It is apparent that Council was being misled yet again.
In February 2019, an STR operator told Council that disruptive rentals only comprised about 1% of the STRs in Oro-Medonte and that all Council had to do was ‘register’ them so they would know where they were. Only a 1% problem? How could that be?
In September 2019 “Host Compliance”, a company that tracks STRs advertising in the Internet reported to the Township that there were approximately 200 STRs carrying on business in Oro-Medonte. By 2019, homeowners had reported over 35 disruptive short-term rentals to the Township. That means that at least 17% not 1% of the STRs were disruptive. Was the 1% figure carelessly made, or was it yet another strand deliberately woven into the web of misdirection intended to mislead homeowners and members of Council? You be the judge.
To remove any doubt that we are being misled by some STR operators claiming that STRs are permitted, consider this. Bed and Breakfasts are not permitted as a matter of right in residential zones. A Bed and Breakfast is limited to a maximum of three rooms in a dwelling and there must be a site plan agreement with the Township. This has been in place since at least 1997. Therefore, it doesn’t make any sense that a short-term rental of an entire dwelling, without any site restrictions could somehow be permitted in any residential zone. This is not a rational or reasonable interpretation of the zoning by-law. STRs can’t possibly be legal.
Weaving the web of misdirection continues. Some STR operators claim that the interim control by-law passed in 2018 somehow legalized the unauthorized STRs then in operation. Such claims are unfounded and incorrect. It is a basic and fundamental planning rule that an interim control by-law cannot legalize an unpermitted use. STRs have not been a permitted use in most residential zones since at least 1997. Therefore, the interim control by-law could not have legalized unauthorized STRs operating in the Township in 2018. Again, we are all being misled.
The pattern is clear. Some STR operators are willing to say almost anything to stay in business. That’s because they want to continue their prohibited hotel-like activities. When you make more than $100,000 a year you don’t want to stop. The cash comes too easily. It is addictive. Some STR operators, flush with cash, will litigate just about everything so they can cause delay and drive-up expenses for the Township. The more they can stall enforcement, the more they can profit from their very lucrative but unlawful businesses.
As a result, unauthorized STR operators continue to flaunt the zoning by-law and to make money at our expense. Meanwhile, it is the homeowners that lose. As taxpayers we all have to foot the bill for all the STR-related calls for service to municipal law enforcement, police, fire, and the costs of defending faint-hope appeals to the courts and tribunals that are really intended to delay and waste our tax dollars. A miniscule group of millionaires can do that. Disrupt our neighbourhoods, devalue our properties and make us pay for it. It is no wonder that 13 residents’ associations representing thousands of homeowners have united to formally oppose STRs in residential zones.
Taxpayers have no choice but to pay the bills. As the Township embarks on enforcement, we are facing even more bills. Enforcement costs must be incurred if the Township wants to protect our safety and the integrity of our neighbourhoods. We can’t afford not to incur these costs. The alternative, allowing STRs to proliferate, will cost us far more in the future. Legalization, which is what the STR operators want, doesn’t work as demonstrated in other local municipalities. Once legalized, the cost of STR licencing and enforcement is very high. Worse, once legalized, enforcement has been shown to have had very little, if any, impact on controlling the intrusions and disruptions caused by permitted STRs
So is it the Township that is misleading us? I don’t think so. I believe that the Township is being responsible and diligent by enforcing the existing zoning by-law. The Township and the present Council are just continuing the course set out by the previous Council. The previous Council unanimously rejected licensing STRs in residential zones. Thankfully, the previous Council recognized that the OLT decision was legally flawed and decided that the Township should appeal that decision. The current Council is just following along the same path by continuing to have the Township pursue the appeal.
The previous Council adopted a new Official Plan which includes policy provisions on STRs. The Township consulted with the public as required and considered the submissions from the STR operators over a period of many months. After analysis and deliberation, the previous Council unanimously determined that the new Official Plan should continue the existing zoning regime that does not permit STRs in most residential zones.
The previous Council concluded, unanimously, that there should be no change in the protection of residential neighbourhoods from the intrusion of incompatible STR activities. It should be noted that the new Official Plan includes provisions similar to those adopted by the Town of The Blue Mountains. These provisions were approved by the Ontario Municipal Board and upheld by the Ontario Superior Court. A similar approach was taken by the City of Niagara Falls and was upheld by the Ontario Land Tribunal.
Today, the Township is taking enforcement steps designed to protect the safety, security and integrity of our residential neighbourhoods and to ensure that no one suffers the way some neighbours of unauthorized STRs have suffered over the last six years. By enforcing the existing zoning bylaw, the Township will be seeking fines and court orders to stop unauthorized STR operators who continue to flaunt the law. This is a necessary and important step to make it clear that unauthorized STRs will not be allowed to erode and impair the quality of our residential neighbourhoods.
The Township is trying to protect our homes and our neighbourhoods and our communities not just for today, but tomorrow too. Not surprising, that is not what some STR operators want. Not surprising that some are continuing to weave the web of misdirection. The operators of unauthorized STRs want to see their businesses legalized. As for homeowners, once informed of the havoc and the disruption caused by STRs over the last six years, no one except the STR operators want STRs permitted in residential zones.
In the end, this is about what kind of neighbourhood we want for our children and our grandchildren. We all want to be safe in our homes. We all want to be free from encounters with groups of random visitors who don’t care whether their $1,000-a-night vacation antics disrupt us and our neighbourhoods. We all want to be free from having to call municipal law enforcement, or the police, or fire and emergency services for help at all hours of the day and night. We all want housing for our communities, not hotels.
In staying the course established by the Township under the previous Council, and in seeking to have our zoning by-law enforced, it is clear that the Township is doing what is needed and what the overwhelming majority of informed homeowners expect. I believe that members of our present Council are working diligently to protect us all and ultimately, make our neighbourhoods a better place to live.