Disclaimer: Please note the following article purposefully does not identify the business owner. Names are also purposefully avoided, though titles are provided. We are more interested in municipal practices, which in this case appear to be ad hoc, undisciplined, and made against its own bylaws. The following is a presentation of facts. We have presented our findings to select elected officials and upper management at the District, for correction in the case we were wrong, and for statement if we weren’t. None has provided us a statement on legal non-conforming or where ultimate responsibility rests, be it with staff or with Council.
–by Britt Santowski, Publisher, SPN
At the September 18, 2017 regular Council meeting, Council deliberated a request by local business owner to issue a business license. With very little facts beyond the business owner’s own application, Council granted his request.
The facts presented by the business owner came in a same-day submitted letter presented to Council (thereby not available to the public via the meeting documentation). In it, the business operator requested a business licence for a business doing “fabrication and welding repairs, automotive repairs and sales” (wording recommended by the business operator’s insurance company). The business operator indicated this business had “been operating in Sooke for 19 years.” The letter also noted that two trips by provincial “assessment authorities” were made to his property and they “deemed that my operation should be classified as commercial, not light industrial.”
2017 less 19 years would lead anyone to think that the business had been operating since 1998. Since Sooke incorporated 18 years ago, in 1999, the land upon which a business operated prior to Sooke’s incorporation could be deemed legal non-conforming.
Problem The First: The land usage in question is not legal non-conforming
Legal non-conforming is a term that defines continued-land-usage when a property straddles two administrations, in this case being the administrations before 1999 (CRD, bylaw 2040) and after (when Sooke incorporated and continued with the CRD bylaw 2040, until 2008 when they introduced the current regulating bylaw 600).
Council’s granting of the business licence hinged on this term, legal non-conforming. The inclusion of “legal non-conforming” in the motion was an amendment added by the CAO.
“If the motion can include wording such that Council recognizes that it’s a legal non-conforming use of the land, that would be most appropriate, to provide direction to staff,” said the CAO at about 22 minutes into the meeting. “Whenever we have legal non-conforming, we as staff have to follow our bylaws and so that’s why we put these individual cases in front of mayor and council because we can’t pick and choose which laws we apply and which ones we don’t. Of course mayor and council can, so, this is why this one’s in front [sic], and I’m sure it won’t be the last one.”
In his presentation, the business operator indicated that they had been doing the business since before Sooke was incorporated. That may be true, but not on that lot.
Land transfer records show that the land hosting this business was purchased by the current business owner on September 22, 2000, one year after Sooke incorporated. Legal non-conforming, which travels with the usage of the land and not the business of the person, does not apply.
Quite possibly, the math was miscalculated when the delegation or the letter to Council was written. Mistakes happen. However, fact checking should have fallen to somebody.
During the Council meeting, the CAO did state, “we do tend to get legal opinions on each individual case as to whether or not they qualify for legal non-conforming.” Whether or not legal opinion was sought in this case is unknown, but the statement does indicate that staff has some fact-checking responsibility.
Problem The Second: The business licence was issued without any checks and balances
The request for the business licence was made on September 18. At the meeting, both the mayor and the CAO said that the turn-around time for this licence would be same-day. On September 19, the business owner applied and on that same day, the licence was issued.
The District’s own online information on their Business Licenses web page states that business licences are “issued by the Business Licence Inspector in collaboration with other departments, including Development Services and the Fire Department.” While not directly stated, the implication is that other departments look at the application and ensure the regulations for which they are responsible are being followed. The City of Langford, for instance, asks applicants to allow for 10 days to do the necessary checks.
In this case, no departmental checks were done. A District-issued email stated that “As Council directed the issuance of this licence, a checklist does not exist.”
At the Council meeting, the mayor did indicate that no further checks were required. “Have your paper work to the District, and your fee,” said the mayor to the business operator, “and we’ll get you your licence.”
Problem The Third: RU3 zoning does not allow for commercial use
At this point, we run into a third problem of which either elected officials or staff should have been aware: the land on which this commercial welding and automotive enterprise operates is zoned RU3, or “Small Scale Agricultural.”
A home-based business is a permitted use of RU3 lands as per Sooke’s Bylaw 600. But while it is permitted, section 4.3(m) clearly indicates the following uses are not allowed by home-based businesses:
- Auto repair on lots 2,000 m2 in area or smaller;
- Auto repair outside of an enclosed building;
- Heavy equipment storage and repair;
- Autobody work;
- Welding or steel manufacturing.
According to the business operator in his presentation to Council, the reason why he was denied a business licence in 2008 was because welding was not allowed as a home-based business.
Further, the District knew the proposed licencing conflicted with current zoning. In a piece of correspondence obtained by SPN, the mayor observed the business operator “was told [by the CAO and the Director of Development Services who did a site visit] that selling vehicles was not permitted under the existing zoning and that he would need to make application to the District for rezoning of his property. Staff informed [the business operator] that the approval of said application would be challenging given the current OCP designation for the area.”
Yet, the District issued a business licence that explicitly allows for “fabrication and welding repairs, automotive repairs and sales.” The CAO and the Director of Development Services along with the mayor were present at the time this request was made to Council.
Problem The Fourth: An Intermunicipal business license was inappropriately granted
Under the wrong assumption that the property usage fell under legal non-conforming, Council directed staff to “issue a business licence to” the business operator.
Still, staff had a decision to make, and some autonomous thought processing was required, as Council did not include the type of licence that should be granted. A home-based business licence was not an option, as on-site welding and automotive work are not permissible. A commercial business licence was also not immediately a viable option, as that would entail a land rezoning application requiring time, money, Official Community Plan (OCP) compatibility (which wasn’t likely), and community input.
The workaround, it appears, was to grant the applicant an intermunicipal business license. The intermunicipal licence, introduced in 2000, is an agreement shared among 13 local municipalities. Eligible businesses for intermunicipal licenses include contractors, towing services, and mobile sales. Victoria, Saanich, Sidney and Langford’s websites all indicate that this license is to be given to business who are mobile in nature.
The business in question, based on its own website, is a full-service welding and fabrication facility. According to the draft minutes referenced earlier, the District also acknowledges that “the business … operates on his residential property, in the District of Sooke.” Further, as a Councillor pointed out, the business operator pays taxes based on the commercial use of that land.
In other words, this business is not mobile. There may be a mobile component, as the business operator’s unlicensed services have been historically contracted by the District, but the business is full-service, and work is conducted on site.
If this business, which conducts work both on and off its property, is allowed an intermunicipal license as a workaround, then this may be setting precedence for a loophole available to other home-based-but-commercial enterprises in Sooke.
Commercial businesses of the same nature have a number of requirements with which they must comply:
- Highway access: If a business’s access point is a provincial highway, an application to the province must be made.
- Signage approvals: Road signs have to be approved.
- Controlled Waste Permit and/or Waste Discharge: If a business deals with hazardous waste (automotive: fuels and oils; welding: gases), there is a requirement for proper waste disposal.
- Ventilation: A check for proper ventilation may also be required. Hazards from welding fumes (a complex mixture of metallic oxides, silicates and fluorides) include asphyxiation (lack of oxygen), fire or explosion, and toxicity. (See this Fact Sheet from the Canadian Centre for Occupational Health and Safety.)
- Trade certification: If a commercial business is based on a trade that has associated certifications granted by the Ministry of Advanced Education, then certification needs to be presented and checked.
- Rezoning: If the zoning of the property changes from RU3 to Commercial, a rezoning application (which includes public consultation) would be required.
Several balls were dropped, from no-brainer fact-checking to enforcing rules to following standard procedures. Elected officials are responsible for policy, staff for process. Somethings—no, many things—went horribly horribly wrong.
Conclusion: Sooke masters the Wild Wild West
As it stands, there are four major apparent takeaways. First, it appears that applicants can present whatever information they want to Council, as facts may or may not not be checked. Second, it appears that business licences can be issued without checks or balances, if you can convince Council to direct staff. Third, it appears that zones are flexible suggestions. And lastly, it appears that the Intermunicipal licence is an excellent workaround for home-business operators interested in a commercial enterprise, without having to go through all the expensive time-consuming bother of re-zoning.
PostScript, for those interested in litigation: while we appreciate the reverse onus with defamation automatically assumes the accused is guilty (hence the disgustingly easy political employment of SLAPP suits in Canada), the best defense is truth. Everything contained in the above article is true, factual, and verifiable; opinions and conclusions when presenting an argument based on facts are also allowed. The contents have been presented to the District in advance for errors as well as for comment, and the District opted not to respond. Also, the publisher lives in a trailer park and survives on a modest annual household income of about $20,000—two degrees and 30 years of experience be damned. Any lawyer worth her salt will tell you ability to pay should be a part of your pre-lawsuit contemplation. Oh for a time when leaders don’t pose as perpetual victims, when administration isn’t litigious, when “fake news” means more than “a point of view you don’t like.”
- Council to receive report that chastises Council for granting a business licence
- Delegation reveals Sooke Council divided on being informed
- DELEGATION: Recent bad Council decision tied to the lack of an up-to-date OCP
- District of Sooke grants improper business licence, violates its own zoning
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