Comox Valley Regional District Petitioner And: John Joseph Reiter Respondent, 2015 BCSC 1235

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Comox Valley Regional District v. Reiter, 2015 BCSC 1235 Date: 20150619 Docket: S08776 Registry: Courtenay Between: Comox Valley Regional District Petitioner And: John Joseph Reiter Respondent Before: The Honourable Mr. Justice Kent Oral Reasons for Judgment In Chambers Counsel for the Petitioner: Troy J. DeSouza Respondent John Joseph Reiter: Appearing in person on his own behalf Place and Date of Hearing: Nanaimo B.C. June 19, 2015 Place and Date of Judgment: Nanaimo, B.C.

June 19, 2015 [ 1 ] THE COURT: In these petition proceedings, the Regional District seeks a declaration that Mr. Reiter has been and continues to be in contravention of ss. 302, 311, and 803 of the Comox Valley Zoning Bylaw, 2005, No. 2781. It seeks an injunction restraining further breach of the bylaw. [ 2 ] Mr. Reiter lives at 2620 Farmview Road. His home is actually a recreational vehicle which has no running water, electrical power, or septic system. The RV is parked underneath an awning that he has built. The awning is attached to a small building which he built to accommodate equipment and other belongings.

He has installed a solar-panel system to provide some power. By any standards, these are modest accommodations. [ 3 ] Mr. Reiter’s property is located within the rural ALR zone of the zoning bylaw. The bylaw limits residential use to one single detached dwelling. The bylaw also forbids the use of a recreational vehicle for permanent, full-time occupancy. However, it expressly permits occupancy of RVs for residential purposes for a period not to exceed 60 days per visitor in any 12-month period, consecutive or non-consecutive. [ 4 ] Mr. Reiter concedes that he is in breach of the bylaw.

He says that he is a man of very modest means and that his use of the RV as a home is unobtrusive and is causing no harm of any sort to the land or to his nearby rural neighbours. In his defence, he invokes the Regional District’s own written policy which, among other things, provides: (1) there is no duty on the part of the Regional District to take enforcement action with respect to every contravention of every bylaw; (2) rather, it is mandatory that discretion be exercised on a case-by-case basis; and (3) the discretion must not be exercised in bad faith. [ 5 ] Mr.

Reiter acknowledges that the investigation and enforcement action by the Regional District was triggered by a complaint from one of his neighbours. That neighbour is Mr. Kevin Broughton, who has sworn an affidavit in support of these petition proceedings. In his affidavit, he complains that Mr. Reiter’s use of an RV as a residence does not conform to the overall character of the neighbourhood. He expresses concern that this type of non-compliant use may reduce property values of surrounding properties including, of course, his own. He expresses concern about the lack of septic services on Mr.

Reiter’s property and the potential health and environmental issues that may arise, particularly insofar as the property is located in a flood zone, and flooding might exacerbate the health and environmental risks. [ 6 ] Mr. Reiter points to the Regional District’s written policies respecting governance. In particular, he points to the policy statements indicating that the CVRD decision making will be based on:

(1) clear and complete information; (2) opportunity for discussion and questions; and (3) opportunity for reflection. [ 7 ] Mr. Reiter observes, correctly it appears, that there are numerous other people within the Regional District who are living in RVs without any sort of enforcement action being taken by the municipal government. He believes he is being treated unfairly in the circumstances. In particular, he believes he was not given any proper opportunity to fully present his point of view to the decision makers, both before and while enforcement action was taken.

He has, in fact, mounted somewhat of a public relations campaign, which has involved the distribution of a poster depicting families being squashed under the boot of government, and urging readers to “stand with him” in court “to oppose the tyranny” to which he is being subjected. [ 8 ] This matter first came before me on November 3 and 7, 2014. Having allowed Mr. Reiter to air all of his concerns respecting lack of meaningful dialogue with the District, I adjourned the matter for four months so that such meaningful communication might occur.

I expressed the hope that an in-camera meeting might be held between Mr. Reiter and the District’s Electoral Area Services Committee, at which the parties could discuss the fairness of enforcing the bylaw in the circumstances of this particular case. [ 9 ] That meeting did, in fact, occur. It resulted in the District extending a fairly generous offer to Mr. Reiter. The offer contemplated suspension of enforcement proceedings for some four years, during which time Mr. Reiter would be able to take steps to voluntarily bring his property into compliance. [ 10 ] Mr.

Reiter says the offer is meaningless, because he simply does not have the money to effect such compliance. Hence the re- attendance of the parties before the Court today. [ 11 ] Ms. Debra Oakman is the chief administrative officer and the senior civil servant of the Regional District. She was in the courtroom for today’s hearing. I asked that she be sworn in as a witness, so she could explain what happened at the in-camera meeting, and also so she could expressly explain to Mr. Reiter why the Regional District is not exercising its discretion to forego enforcement of the bylaw in this particular case. Mr.

Reiter was also given the opportunity to cross-examine Ms. Oakman on these points. [ 12 ] Ms. Oakman explained that three of the Regional District’s directors were present at the meeting, including the director elected to represent the particular area in which Mr. Reiter lives. She explained that the directors were very sympathetic towards Mr. Reiter’s plight and any hardship that might ensue should he be required to vacate his RV.

However, the directors’ primary concern was focused on the safety and liability risks associated with non-compliance with building and other codes expressly designed for permanent dwellings. [ 13 ] Ms. Oakman acknowledged that there are indeed other people in the area who live in RVs. She stated that bylaw enforcement is very often driven by complaints, as is in fact the case here. She says there have been other complaints brought against individuals who permanently live in RVs, and that in each instance the Regional District sought and obtained voluntary compliance with the bylaw.

In some instances, the parties were given several years within which such compliance might be made. In this particular case, the directors concluded that the best approach would be to make a similar offer to Mr. Reiter. [ 14 ] There is no evidence before me which in any way establishes that the Regional District has acted in bad faith in pursuing enforcement of the bylaw in this case. Mr. Reiter has been provided the opportunity to present his arguments to the Regional District. The District has considered and reflected on his submissions. They have balanced the hardship that might be imposed upon Mr.

Reiter with the public interest in having the law obeyed. They have offered a compromise in the hopes that Mr. Reiter may be able to find some way to come into voluntary compliance with the bylaw over the next few years. None of this amounts to bad faith in the exercise of the Regional District’s discretion to enforce compliance with bylaws. [ 15 ] The simple fact of the matter is that Mr. Reiter is in breach of the bylaw and has been for some considerable time.

While I have considerable sympathy for his plight, and I have listened carefully to all of his submissions, I am obliged to enforce the law. [ 16 ] I am, however, going to incorporate into the outcome some of the terms which the Regional District most recently offered to Mr. Reiter. [ 17 ] In the result, I issue an order as follows: 1. Mr.

Reiter is declared to have been and still be in contravention of ss. 302, 311, and 803 of the Comox Valley Zoning Bylaw, 2005, No. 2781, by using a recreational vehicle for permanent residential occupancy on his property at 2620 Farmview Road in excess of 60 days in any calendar year. 2. Mr.

Reiter will have until Wednesday, May 1, 2019, to bring his occupancy at the property into compliance with the Regional District’s bylaws, whether that be by residential occupancy of the RV for less than 60 days, vacating the property, constructing or substituting another dwelling that is bylaw compliant, or by any other means. 3. In the event such compliance has not occurred by at least two months before the said May 1, 2019, deadline, then Mr. Reiter may deliver a written request to the Regional District for an extension of the deadline.

The board of directors of the Regional District will thereupon convene an in-camera meeting with Mr. Reiter to discuss and consider his request. 4. The Regional District shall have absolute discretion with respect to any such extension, subject to its obligation to exercise good faith in that regard. 5. The benefits bestowed by this order are personal to Mr. Reiter so long as he remains the owner of the property. They are not transferrable to any other person and, without limiting the generality of the foregoing, do not apply to any successor in title.

[ 18 ] One of the terms offered by the Regional District to Mr. Reiter was to forego any claim for costs in the even that it succeeded in this litigation. That is a generous offer in the circumstances and should be appreciated as such by Mr. Reiter. In any event, each party will bear their own costs of this proceeding. “The Honourable Mr. Justice N. Kent”