Letter: Secondary Suites on ALR land

Tuesday, March 27 2018

At the recent Public Hearing on proposed Bylaw 293, agricultural landowners expressed their support for allowing a secondary suite above an existing accessory building on Agricultural Land Reserve (ALR) land. Bylaw 293 had initially included this provision, but when the Trustees became aware that the land must be classified a “farm” under the Assessment Act, they removed the provision out of concern that the loss of farm status could result in tenants being evicted and the landowner left with an unusable suite. Still interested in exploring this option, the Trustees deferred the provision to Phase 2 of the Gabriola Housing Options Review Project. It is unfortunate that the “farm status” requirement was not recognized earlier. So what is possible?

 The Agricultural Land Commission (ALC) legislation is paramount. Consequently, local bylaws applicable to ALR land must be consistent with the ALC legislation.  To determine if there were other requirements applicable to the suite, I contacted the ALC and was provided the following information:

a. “If a property with a suite above an existing building ceased to have farm status, the ALC would expect the suite to be decommissioned either to the standard specified by the local government or to our standard as defined in Policy L-10 (p.2).”, and

b. the accessory building must have been in existence as of June 15, 2015 (i.e. the effective date of that part of the regulation).

The Policy L-10 cited above requires an extensive physical decommissioning of the dwelling’s kitchen/bathroom infrastructure.

The ALC Act legislation doesn’t explicitly state these two criteria and I was unable to find written policies about them. Therefore, the above criteria are the ALC’s current operational interpretation. However, the ALC did indicate written direction was under development. Consequently, the ALC “expects” the local government to establish a means by which the suite would somehow be “decommissioned” and, secondly, that the accessory building must have been in existence on June 15, 2015.

 In addition, the ALR regulation does require the suite to be a single level (i.e. not on two levels) and located above the main floor of the accessory building. 

 What may be possible?

The local bylaws must address what happens when “farm status” is lost. The direction from the ALC provides some flexibility, although the degree of flexibility available in determining what “decommissioning” means is not clear. Given the above ALC direction, the bylaws could define decommissioning by referencing the ALC Policy L-10. Other possible alternatives may be to require a lesser degree of the physical decommissioning of the suite or possibly prohibiting the suite to be used as a residence. In addition, it may be reasonable to include a grace period before any such action is undertaken or prohibition comes into effect. The grace period would provide time for farmers who lose farm status temporarily (e.g. due to illness or crop failure) to regain farm status.

Ensuring compliance:

Just including the above requirements in the bylaw leaves compliance enforcement up to the Bylaw enforcement process. An alternative may be to require a covenant, like the one required for the manufactured home on ALR land, that sets out what must occur upon the grace period expiring. 

The ALC policy for the manufactured home requires removal but, interestingly, also states that if the manufactured home remains, it may only be used by immediate family.  Given this flexibility for manufactured homes, I wonder if similar criteria could be established for the suites.

Other factors:

Other factors to consider that do not necessarily require ALC concurrence are lot size, size of the farm operation and requiring “farm status” to have been in effect for a period of time prior to approval for a suite, the latter being a way of ascertaining some degree of viability. In addition, the bylaw may need to address the means of establishing the accessory building’s existence (or under construction) on June 15, 2015.

 The ALC Act and its regulation set certain mandated requirements, but the legislation and policies do appear to provide flexibility in some areas. Parameters that work for Gabriola are, I believe, possible if close collaboration with the ALC and the community occurs.

 Please note that the above only relates to land that is both zoned “Agriculture” and in the ALR. It does not apply to land zoned Agriculture that is not in the ALR. Agriculture zoned lands not in the ALR would be permitted a secondary suite in one of the 6 configurations set out in bylaw 293.

Some thoughts to consider for Phase 2 of the Gabriola Housing Options Review Project.

~ Kees Langereis, Gabriola Island