The following is the most recent presentation made to the Harrison Park Municipality council on May 18, 2022. It addresses many facts regarding short-term rentals in the municipality. Video of this presentation is available on the RM of Harrison Park YouTube channel.
Good evening Reeve Potter and councillors.
My name is Marlow Kirton. I have been a property owner in the RM for 30 years and have enjoyed the surrounding area my entire life. I’m very aware of the dynamics that make the relationship work between Harrison Park and Riding Mountain National Park.
I’ll start by saying, I shouldn’t have to be here today and you shouldn’t have to be sitting in your chairs listening to me. The fact that I am present is my way of saying publicly that something is amiss in the Municipality of Harrison Park.
The subject I’m addressing is the festering issue of Short Term Rental intrusion in the RG (Residential General) zones. I will be speaking on behalf of several of the more vocal property owners in the RM. You will have already heard from many of them in one way shape or form. These are the people that have been subjected to STR impacts first-hand or can see them spreading and have chosen to speak up and speak out.
I’m also here to represent those that are less confident in speaking to councillors or administration. They feel ignored, belittled, abused and taken for granted. Some feel intimidated by their unwelcome STR neighbours yet feel powerless to do anything about it. Council has lost their confidence and that is a sad statement.
The last group I speak on behalf of is those property owners that are oblivious to the transition that is underway. They are unaware that their neighbourhood is incessantly being transformed and they won’t be aware until it shows up on their doorstep. By then, the damage is done, their heads will spin and they will ask…….what just happened?
If each of you has taken the time to read every letter submitted to the RM by aggrieved property owners, as you should have, you can’t help but feel the writers’ pain. Their neighbourhoods are changing and not for the better. Collectively, those letters represent a cry for help that only council can address.
I’ll be blunt, the mess we find ourselves in today could have and should have been addressed years ago. It confounds me that it wasn’t until there were almost 100 STRs operating illegally that it finally became a point of concern for the RM.
What really disappoints me is that the investigation had to be triggered by property owners complaining that they were subjected to a laundry list of negative impacts. Why should we rely on a complaint-driven system to monitor our neighbourhoods especially when the issue in question is covered by the existing zoning by-law?
I don’t need to spend time talking about the very real damage taking place to our residential general zone. I’d be shocked if you weren’t already well versed. No, today I will stick to the facts — the concrete evidence that council needs to hear.
Fact 1
STRs are not a permitted use in the Residential General zone nor do they qualify for conditional use consideration.
Zoning By-law 1311 is very clear. At no point are STRs mentioned in the use chart, therefore, by default, they are not-permitted. That is how zoning by-laws are written. Typically, there will be a short list of permitted uses, and an even shorter list of conditional uses, with every other use under the sun classified as not-permitted. There is no interpretation required, only enforcement.
The Province of Manitoba has supplied municipalities with support material and guides to assist them when developing a zoning by-law. The following passage is very explicit.
From The Municipal Planning Guide to Zoning Bylaws in Manitoba
Component B: Reference Binder of Model Zoning Language
3.3 Permitted and Conditional Uses
The permitted and conditional uses prescribed for parcels within each zone are those set out in the Use Table. Permitted uses are indicated on this table with the letter [P]. Conditional uses are indicated on this table with the letter [C]. Where a use is not listed and is not similar to, or accessory to, a permitted or conditional principal use, or a permitted or conditional secondary use, the use is not allowed in the zone.
STRs do not meet this threshold. There is no similarity between a for-profit STR business and an owner-occupied residence.
Fact 2
STRs do not fall into a grey area with regard to the zoning by-law.
The grey area phrase has been used with me on more than one occasion and by people in position that should know better. The notion that STRs are a mysterious classification that somehow merit deeper consideration is preposterous. They simply are not-permitted in RG. This is a definitive determination that should have been made when STRs first entered the RG zone. Enforcing the zoning by-law at that time would have sufficed, word would have got around and STR operators would have located their businesses in zones that permitted them. Hiding behind the grey-area label allowed STRs to propagate without interference until property owners complained. The philosophy of “ignore it and the problem will go away” backfired in this instance and with a resounding thud.
Fact 3
The RM of Harrison Park has the authority and the responsibility to enforce the zoning by-law.
By-law enforcement is not a voluntary action to be taken in a haphazard fashion. By-laws are written with specific intention. If they are not enforced consistently and as each infraction occurs, the credibility of the RM is undermined and, in this case, eroded to the point that STR owners don’t hesitate to ignore the zoning by-law.
From: The Municipal Planning Guide to Zoning Bylaws in Manitoba
Component A: Introduction to Zoning
under Roles and Responsibilities
A municipal council is responsible for administering and enforcing the zoning by-law.
Fact 4
Councillors are obliged to follow by-laws.
When you were elected in 2018, you would have received a document entitled 2018 Council Member’s Guide. Within are found the following statements:
- Council is responsible to ensure that the municipality acts within the law.
- Municipalities must create and enforce laws about how land is used.
Per the RM of Harrison Park By-law #88, Code of Conduct
Under the heading of Responsibility
Paragraph 7.5(b):
Council members must demonstrate responsibility by acting in accordance with the by-laws, resolutions, policies and procedures of the municipality.
This is your by-law, you voted for it. By-law #88 passed third reading during this administration on October 6, 2020. Adherence to by-laws is not optional. By extension, neither is enforcement.
Fact 5
Council passed a resolution to enforce the zoning by-law.
The resolution from the Dec 15, 2021 council meeting stated:
Resolved that the municipality of Harrison Park begin enforcement action respecting the short-term rentals that are not permitted under the Municipality’s zoning by-law.
Further be it resolved that Administration be instructed to develop an enforcement strategy to be presented to Council at the Jan 12/22 council meeting.
Council deferred discussion at the Jan 12 meeting but still called it “a proposed enforcement strategy”.
At the Feb 2 council meeting the issue resurfaced but this time was called a “regulation strategy”.
While passing the resolution on December 15, 2021 was a redundant event since enforcing the by-law was already a requirement for council, it was still welcomed news. However, without a single word, on Feb 2, we found the RM had engaged the consulting group, Scatliff + Miller + Murray, enforcement action was put on hold and the thought of a possible regulatory structure was introduced. I was speechless. I would love for someone to explain how that happened.
Per the previously mentioned 7.5(b) of By-law #88, Code of Conduct, council members must act in accordance of resolutions. Again, the wording is must, not may or might or could. Enforcement of the zoning by-law should have ramped up the day after the council meeting at which the unnecessary resolution was passed. Instead, we ended up with a protracted navel-gazing exercise that spent money and time when enforcement of an existing by-law would have been fast, effective and inexpensive.
Fact 6
Attempting to regulate STRs in the RG zone is pointless.
In very simple terms, you cannot regulate a use that is neither permitted nor eligible for conditional approval. STRs can’t be present in the RG zone, therefore, a regulatory structure is a wasted effort and would serve no purpose. Regulations within zones that permit STRs makes perfect sense and is a natural next step after the permissible zones issue is dealt with.
Fact 7
STRs directly conflict with the use and enjoyment of neighbouring property owners.
Much has been broadcast about the negative impacts of an STR next door. I’ll make it even more manageable to understand. No property owner would ever request that an STR be opened up next door unless, of course, they were involved in the industry. If there is no chance the property owner would ask for one to occupy next door, why would the RM allow STRs to be operating illegally in that very same location.
Fact 8
The Harrison Park Development Plan sets the framework for zoning by-law creation and specifically identifies use compatibility within a zone as a key consideration.
Compatibility evaporates once a non-permitted business operates immediately next door to an owner-occupied residence. Residential neighbourhoods that are intact are strong, vibrant and resilient. As soon as that fabric is compromised by non-permitted uses, the neighbourhood becomes susceptible to decay. The extreme on one end is a neighbourhood where all properties are owner-occupied, where neighbours know each other, look out for each other, help each other, entertain together, celebrate the great moments together and console each other in times of sorrow. At the other end of the spectrum is a neighbourhood that has been completely consumed by STRs. The neighbourhood ceases to exist. There are no ties that bind, it simply becomes a resort without common walls between tenants. That paints a very bleak picture but is certainly possible if you do not defend the Residential General zone’s right to not be populated by non-permitted uses. You must act now.
Fact 9
The RM of Harrison Park is not alone in controlling STRs.
Communities around the world are at various stages of addressing the impact STRs have on their neighbourhoods. A common thread for those that have developed clearly defined structures is the strength of their council. Those councils have largely decided to tackle the issue head-on, swiftly and decisively. In our case, using the existing zoning by-law would expedite the process significantly.
Fact 10
The threat of legal action by STR owners is typical.
The lawyers for STR owners are doing exactly what they are paid to do, work for their clients’ best interests and they get paid for their service in return. By sowing doubt and threatening action, they will hope to undermine council’s resolve. There is plenty of case law to support enforcing the zoning by-law. Having the law on your side can be very beneficial and in this case, it would be for the RM.
Close to home, Pinawa recently went through a similar debate. The legal opinion they received cited several cases as support with the following result:
- Operating an STR was deemed equivalent of a hotel stay
- A continuation of a non-conforming use is only permitted when such use was lawful prior to the passing of the by-law.
- Uses not listed in the use tables are not allowed
Vacation hotspots like Canmore AB, and California’s Coachella Valley, Palm Desert, Rancho Mirage and Cathedral City have all taken a firm stand.
Fact 11
Progress on this issue has been painfully slow in the RM of Harrison Park.
A full 16 months have passed since this issue became a public tempest. For years prior to that, STRs continued to multiply until they could no longer be ignored. They weren’t dealt with by enforcing the zoning by-law when there were only 2 of them. Do we dally until there are 200 or 2000? When does the RM put their foot down and enforce the existing zoning by-law?
Fact 12
Almost all property owners agree there is a role for STRs to play in Harrison Park.
The issue has never been what but where. STRs provide a service that can be a net community positive and would surely get the support of the vast majority of property owners. To achieve that, STR owners must adhere to the zoning by-law and situate in permitted zones. Residential General is not one of them.
Fact 13
Condominium and planned developments are perfect for STR operations.
Both of these development concepts are self-contained, and in the case of condominium corporations, there is a level of self-governance. Support for STRs in these developments would be easily attained. The key to that support is the fact that owners in these developments know exactly what they are getting into. When they look at purchasing they will be informed as part of the purchase contract that STRs are or are not permitted.
Fact 14
The RM has the ability to create a new zone specific to STR development.
As part of the development plan review that is currently underway, we suggest the RM give serious consideration to defining an undeveloped area and devoting it specifically to STR development. Again, everyone that buys into that zone will know exactly what they are getting.
In closing, I get the sense that you are searching for some middle ground that will satisfy everyone. That is absolutely impossible. Residential property owners in the RG zone should not be expected to relinquish anything in an effort to keep STRs operating in their zone. Asking them to do so is unconscionable…….forcing it on them is barbaric.
Council has the tools it needs to bring this issue to an immediate end and always has. The residential property owners of the RG zone expect you to do what is right and what is supported by law. The rule of law is not to be taken lightly. It is not to be manipulated.
Marlow Kirton
89 Wildwood Bay