Trust bylaw prohibits accessory buildings on empty lots

Derek Kilbourn

Sounder News

Wednesday, August 14 2019

Building an accessory building on a residential property where there is no principal dwelling is, apparently, not permissible under the Gabriola Land Use Bylaw (LUB). In line with this prohibition, the Regional District of Nanaimo (RDN) has, over the past year, stopped issuing building permits for accessible buildings on properties where no principal dwelling or permit for a principal dwelling exists.

Warren Dingman, Bylaw Enforcement Officer for the Islands Trust, explained that if a building, structure or use is defined as “accessory” then it is only permitted when it is ancillary, secondary and devoted to a principal use. 

“If there is no principal permitted use on a lot, then you cannot build on it, or use it for any accessory uses, and that is why we tell people the accessory uses are prohibited.” 

He quoted from the Gabriola Land Use Bylaw, under “Definitions.”

“Accessory: in relation to a use, building or structure means ancillary, secondary and exclusively devoted to a principal use, building or structure, expressly permitted by this Bylaw on the same lot or, where the accessory use is located on common property in a bare land strata plan, on a strata lot in the same strata plan.”

When it comes to getting building permits from the Regional District of Nanaimo, any building which is less than 10 feet by 10 feet in area does not require a building permit.

Dingman was asked if that meant a 10x10 building could be constructed on properties lacking a principal dwelling.

He said “there is no regulation in the LUB that permits this.”

Dingman said that once someone gets a building permit for a dwelling on a residential lot, “they have committed to establishing the principal use (dwelling), and then they are permitted to build their accessory structures and buildings. 

“This is a discussion that we have with many landowners on multiple islands as it is a common complaint. For Gabriola, the RDN requires that building permits be posted on the subject lot, and we get complaints when people begin clearing land and building without displaying that permit.”

Dingman said there will be some differences between the different zones on Gabriola, and every zone established within the Land Use Bylaw states what the principal use or uses are, and what are then permitted as accessory uses, structures and buildings. 

“If there is zone established where the permitted use is a dwelling, and there are no accessory uses permitted, then only a dwelling can be built on the lot unless it is otherwise stated in the Land Use Bylaw regulations. This means that a detached garage would not be permitted as an example.

“There are some islands which permit accessory uses on a lot, or one accessory building on a lot, prior to the dwelling being constructed, but Gabriola has no such provision. 

“However, you are allowed to store one travel trailer on the lot year round, and you are able to use travel trailers or tents for seasonal accommodation for 60 days consecutive or 90 days total in the calendar year.”

Dingman clarified, “If you get a building permit from the RDN for the dwelling, you are establishing a principal permitted use, and then yes, you can build your accessory buildings before the main dwelling goes up, and that is what most landowners do. 

“But only if you have the building permit for the dwelling. They do not need to be on the same building permit; that is an RDN matter to sort out. But as the RDN has told you, they do not issue the building permits for the buildings that are less than 10x10 anyway, and are not even considered buildings under the Gabriola Land Use Bylaw; they are just structures but still not permitted without a principal use.”

With the question of electrical sheds, to bring hydro to a site under construction, BC Hydro said it depends on the private electrician who is constructing the initial system to check that all local regulations have been followed.

Hydro checks that all prerequisites have been met in terms of safety and technical construction of the site that will be hooked up.

Potentially, if an electrical shed is not allowed under the local bylaws, a temporary power pole could be put up for a meter and power box to be attached to while a site is developed.

In terms of why the RDN has in the last year stopped issuing permits for accessory buildings which were in contravention of the Gabriola LUB, Tom Armet, Manager, Building & Bylaw Services for the RDN, was contacted.

Armet said the RDN does zoning reviews on behalf of the Islands Trust with regards to building permits.

As such, most of the plan checkers at the RDN are aware of and are familiar with the Gabriola Land Use Bylaw.

About a year ago, one of the plan checkers was working with the Islands Trust staff, who clarified a few things. Armet says it may have been an application for a permit - but it came down to the Islands Trust saying that construction of the accessory building wasn’t permitted without the principal dwelling.

Armet said that in the past, “years ago, it was interpreted as being allowed to build accessory buildings.

“Now that it’s clear to us, we can’t issue permits in those instances unless there’s an application in for the principal dwelling.

“We’re taking direction from Islands Trust.”

Gabriola Trustees Scott Colbourne and Kees Langereis said they have been talking to property owners who have been caught up in the issue.

Colbourne said it would be a good issue to include in the housing project currently being conducted by the Gabriola Local Trust Committee.

“I do think this is a really good issue to include in the priority housing project, and [with] the Housing Advisory Planning Commission.

“I’ve shared the project charter and meeting details with the property owner who brought this to my attention.”

Langereis said, “I believe current bylaw wording goes back to the 1990s. 

“Finding a balance between the bylaw provisions and needs of people using their property temporarily would require discussion at a local Trust committee meeting and input from the community.

“Bylaws do evolve as circumstances change, and community input is an integral part of any change. It is a question worth exploring.”

As for the properties which have only accessory buildings (some of which are now decades old), Dingman said the Trust does not track non-compliant properties unless there is an enforcement file; he was not able to state how many there might be on Gabriola which are non-compliant.

Jennifer Lynch, Office Manager of Royal LePage Nanaimo Realty Gabriola, said there are “hundreds of these on the island. Right now, anytime we go to list a property with outbuildings but no house, we have to disclose that this does not conform with our current bylaws.”