Staff report - Comox Valley Regional...

Staff report

DATE: February 9, 2016 FILE: 3010-01

TO: Chair and Directors Electoral areas services committee FROM: Debra Oakman, CPA, CMA

Chief Administrative Officer RE: Home occupation regulations and noise regulation bylaw – information document

Purpose To provide background information on the noise bylaw and zoning bylaw in regard to home occupation use. Policy analysis Part 9 “Regional Districts: Specific Service Powers,” section 323 of the Local Government Act (RSBC, 2015, c. 1) (LGA) provides that a local government may regulate or prohibit the making or causing of noises or sounds in the regional district. Part 14 “Planning and Land Use Management,” of the LGA provides that a local government may regulate zoning. Section 479 of the LGA authorizes a local government to regulate the use, density, size and shape of land, buildings and structures. Executive summary On January 11, 2016, the electoral areas services committee (EASC) passed the following motion:

“THAT staff prepare a report regarding the improvements to the noise bylaw and the zoning bylaw in regards to home occupation, as proposed by the James Crescent community delegation on January 11, 2016, and that staff include comparisons to the Cowichan Valley bylaws as referenced by the delegation.”

Planning and bylaw compliance staff have created two charts that compare Comox Valley Regional District (CVRD) and the Cowichan Valley Regional District’s (Cowichan Valley) home occupation and noise bylaw (Schedule A and B). Planning staff has determined that the Cowichan Valley currently regulates home occupation much like the CVRD. One specific difference with Cowichan Valley’s polices however is that they contain nuisance regulations. The ability to regulate nuisance such as noise is not provided in the LGA’s zoning authority. Partially based on historic legal guidance, the CVRD board in 2012 eliminated nuisance clause from the zoning bylaw. The enabling authority to regulate nuisance is provided in section 323 (formerly section 724 of the LGA), and therefore the CVRD regulates noise through Bylaw No. 102, being the “Electoral Areas Noise Control Regulations Bylaw No. 102, 2010.” Bylaw No. 102 applies to all uses and can be used to address noise resulting from a home occupation. At the November 9, 2015 EASC meeting, CVRD staff presented a status report on the comprehensive zoning review. One of the key objectives during the review of the zoning bylaw will include updating the home occupation provisions for clarity and compatibility with adjacent residential uses. Staff will provide a status update with draft regulation in November 2016.

Staff Report – Home occupation regulations and noise regulation bylaw

Comox Valley Regional District

Recommendation from the chief administrative officer: This report is for information only. Respectfully: D. Oakman __________________________ Debra Oakman, CPA, CMA

Chief Administrative Officer Background/current situation At the January 11, 2016, the following motion was passed:

“THAT staff prepare a report regarding the improvements to the noise bylaw and the zoning bylaw in regards to home occupation, as proposed by the James Crescent community delegation on January 11, 2016, and that staff include comparisons to the Cowichan Valley bylaws as referenced by the delegation.”

This motion was made in response to the James Crescent community delegation presentation on their concerns regarding noise in their community. The delegation requested that section 304 of the zoning bylaw (Bylaw No. 2781) and the noise bylaw (Bylaw No. 102) be amended similar to Cowichan Valley’s regulation of home occupation (Bylaw No. 3520) and noise bylaw regulation (Bylaw No. 3723). In 2012, the CVRD board adopted Bylaw No. 112; a series of text-based housekeeping amendments to the zoning bylaw. The amendments included the removal of nuisance regulations from the zoning bylaw, as the nuisance regulation powers do not fall under zoning authority. Note that this was clarified in two historic legal opinions solicited by the former Comox Strathcona Regional District. The CVRD board opted to implement nuisance regulation under section 323 of the LGA which allows the local government to control pollution, nuisances, pest, noxious weeds, noise, unsightly premises, unwholesome or noxious material, odours and disturbances (i.e. where a service has been established). Planning Analysis Regional growth strategy and official community plan The regional growth strategy and official community plan (OCP) encourage economic activities and support the expansion and diversification of local economic base. A “home occupation” is defined in the OCP as:

“…a business or the production of a product or service that is intended to earn a financial return that is conducted in a residential dwelling unit or accessory building that is incidental and subordinate to the primary residential use of the property.”

The OCP contains the following policies intended to ensure that home occupation are compatible with surrounding residential use:

create minimal visual impact and not alter the rural character of the property or surrounding area;

rely on on-site servicing with minimal impact and ensure new development is in accordance with Subdivision Standards published by Island Health;

remain incidental and secondary to the principal residential or agricultural use on the property;



ensure proper disposal of waste and not produce or store any toxic or hazardous material; and

ensure that any exterior lighting complies with the CVRD’s dark sky policy (OCP 46(4)). Zoning bylaw and noise bylaw The above OCP policies are implemented through the zoning bylaw, the noise bylaw and the unsightly premises bylaw. CVRD and Cowichan Valley comparison Planning and bylaw compliance staff have created two charts that compare the CVRD and the Cowichan Valley’s home occupation regulations and noise bylaws (Schedule A and B). Cowichan Valley currently regulates home occupation much like the CVRD. As long as the use remains relatively indistinguishable from the neighbourhood, a home occupation is permitted with certain restrictions and limitations. Unlike the Cowichan Valley where nuisance provision are included, the CVRD regulate nuisance within Bylaw No. 102 and Bylaw No. 377. Overall, the two jurisdictions both regulate home occupation and noise. The key differences are:

The home occupation regulation is regulated under different LGA authority. The CVRD’s home occupation regulations does not regulate nuisance, such as noise. The CVRD regulates noise through Bylaw No. 102. The Cowichan Valley, however regulates nuisance within the home occupation regulations;

CVRD has a home occupation approval process. The approval is shared with Island Health, Royal Canadian Mounted Police and Ministry of Transportation and Infrastructure. The approval process allows staff to track home occupation approval. Cowichan Valley does not have an approval process;

Noise complaints in the CVRD are investigated based on what actions are prohibited and what times those actions are prohibited as listed within Schedule “A” of Bylaw No. 102 (Appendix A). The same step is applied to those actions and times which are listed as exceptions within Schedule “B” also of Bylaw No. 102 (Appendix A).

The Cowichan Valley bylaw officers are able to use metres to measure decibel levels in the investigation of noise complaints. To date, they have not relied solely on decibel levels due to uncertainty with ensuring accurate measurements and the potential of being challenged in a court of law. Cowichan Valley bylaw officers have only utilized decibel measurements to provide some insight in order to bolster or debunk a noise complaint. No municipal ticket information’s have been issued in the Cowichan Valley solely based on decibel readings.

The key similarities are:

CVRD and Cowichan Valley’s home occupation are somewhat similar, with the exception of regulating nuisance (Schedule A);

Staff from the CVRD and Cowichan Valley apply the general provisions contained within their respective noise bylaws to investigate anyone who “makes or causes any noise or sound which disturbs, or is liable to disturb or allows real property to be used so that noise or sound disturbs, or is liable to disturb”;

Complaints must be supported by a written complaint, and are investigated through a visit to the property and gathering of additional photographic or tape recording; and

Bylaw compliance officers successfully rely on these steps to obtain compliance.



Through the zoning bylaw review, staff will assess whether any changes to the home occupation regulations can be made to further improve the regulation of home occupations. Zoning bylaw review At the November 9, 2015 EASC meeting, CVRD staff presented a status report on the comprehensive zoning review. The review will incorporate the policies of the OCP. Among the strategic priorities that the review will address is a review of the home occupation regulations. Staff will provide a status update with draft regulation in November 2016. Options This report is for information only. Financial factors There are no financial implications associated with this report. Legal factors This report and the information contained herein are in compliance with the LGA and regional district bylaws. Intergovernmental factors Planning and bylaw compliance staff contacted Cowichan Valley’s staff to gather information about their bylaws. Interdepartmental involvement Planning staff prepared this report with assistance from bylaw compliance department’s staff. Citizen/public relations This report was prepared in response to the James Crescent delegation’s presentation on their concerns regarding noise in their community. This report is for information only and there are no public relations matters arising from this report.

Prepared by: Concurrence: Concurrence: T. Trieu A. Mullaly A. MacDonald

Ton Trieu, MCIP, RPP Alana Mullaly, M.Pl, MCIP, RPP Ann MacDonald, MCIP, RPP Assistant Manager of Planning Services

Manager of Planning Services General Manager of Planning and Development Services Branch

Attachments: Schedule A – “Home Occupation comparison chart” Schedule B – “Noise bylaw comparison chart” Appendix A – “Schedule ‘A’ and ‘B’ of Bylaw No. 102”

Schedule A Page 1 of 4

Schedule A

CVRD and Cowichan Valley Home Occupation Comparison Chart


Comox Valley Zoning Bylaw No. 2781

Cowichan Valley Regional District

Electoral Area A (Mill Bay/Malahat) and Area C (Cobble Hill) –

South Cowichan Zoning Bylaw No. 3520

Definition of Home Occupation / Home – Based

Business Regulation

Any trade, occupation, profession or craft carried on for remuneration or financial gain and which is accessory to the principal residential use of a lot and which satisfies the requirements of Section 304 of this bylaw.

An occupation, business, trade or professional practice which is carried on for remuneration or financial gain within a wholly enclosed building or structure, and which is accessory to the residential use of the property.

Max. Number of home occupation Allowed per Lot

More than one home occupation may operate from any lot subject to compliance with conditions (1), (3), (9) and (10) of this section.

More than one permitted, needs to meet home based business regulations.

Max. Permitted Size of home occupation (Floor Area)

Area used may be located in either a dwelling unit, an accessory building or combination thereof.

75.0 metres² for lots zoned under Part 700 Residential Zones.

125.0 metres² for lots zoned under Part 800 Rural/Resource Zones.

100.0 metres² for lots located in the Agricultural Land Reserve unless otherwise approved by the Provincial Land Reserve Commission.

Shall only be conducted within a dwelling unit or within a wholly enclosed permitted accessory building

Gross floor area of buildings used for home based business shall not exceed the gross floor area of the residence.

100 metres² for lots 1ha or less in Electoral Area A and 90 metres² in Electoral Area C for

home-based business use, including office space, storage, processing or sales.

200 metres² for lots greater than 1 ha in Electoral Area A and 90 metres² in Electoral Area C for home-based business use, including office space, storage, processing or sales.

Home Occupation Operator Must Reside on Lot

Yes Yes


Max. Number of Home Occupation Employees per

Lot

A maximum of three persons, including at least one person who resides on the lot on which the home occupation is carried out, may be employed in connection with a home occupation.

The home-based business shall not employ persons who do not reside on the parcel other than in accordance with the following:

1 non-resident employee in Electoral Areas A and C for lots less than 1 ha.

2 non-resident employees in Electoral Areas A and C for lots greater than 1 ha.

Exterior Storage/Operation of Home Occupation

All uses shall be conducted entirely within a completely enclosed building permitted in this bylaw with no external storage of materials, equipment, containers, or finished products, except for daycare use and instruction in outdoor recreational activities such as horseback riding.

Shall only be conducted within a dwelling unit or within a wholly enclosed permitted accessory building.

Vehicle Parking/Commercial Vehicle Parking

The parking of vehicles in connection with a home occupation use shall take place only on the lot used for the home occupation.

Only one commercial vehicle not exceeding 1.0 tonne rate capacity may be parked or stored on any lot in conjunction with home occupation use, notwithstanding that there may be more than one approved home occupation operating on the lot.

No off-site parking associated with the home-based business use is permitted.

No more than one commercial vehicle with a gross vehicle weight of 5,000 kg or more shall be parked or stored outside of a building or structure.

Use Provision Prohibits

No scrap salvage.

Medical marihuana production, or any component thereof.

Repair of motor vehicles for persons other than an owner or occupants of the lot.

No more than 20% of the total floor area permitted for home occupation use may be used to sell articles

Prohibits

Shall not involve exterior storage of any material or equipment used directly or indirectly in the processing, servicing or sale of any product.

Automobile body shops, machine shops, welding shops, heavy equipment repair and similar uses are not permitted as home-based businesses.


not manufactured, repaired or refinished on site.

Permitted

Service establishments.

Daycares of no more than 8 children may be operated as a home occupation where licensed pursuant to the Community Care Facility Act.

Daycares providing care for no more than 2 unrelated children or 6 unrelated adults may be operated as a home occupation.

Permitted

If the parcel is 0.4 hectares in area or more, the following applies: the home-based business use may involve the repair of motor vehicles, excluding the painting and bodywork of vehicles, and shall:

a. be limited to not more than one fully enclosed service bay with a total area not exceeding 25 metres²; and

b. exclusive of the resident’s own licensed vehicles, be permitted to park not more than one vehicle out of doors. No work on a vehicle is permitted while it is out of doors;

c. occur in a wholly enclosed building that is set back not less than 20 metres from any parcel line.

For zones in which unlicensed daycare and group daycare are permitted uses.

Prohibited Side Effects Not Specified. Shall not produce any hazard, offensive odour, noise, dust, smoke, glare, toxic or noxious matter, contaminated site, heat, electrical interference, fire hazard, litter, additional waste, floodlighting, vibration, excessive customer or service traffic, or create a nuisance of any kind.

Home Occupation Application Fee

$150 No Fee required.


Signage Regulations Shall be no external indication that any building is utilized for a purpose other than residential use except that a single non-illuminated sign, not exceeding 0.4 metres².

Shall have no external display or advertisement other than a maximum of one non-illuminated sign, which shall not exceed 0.4 metres² in area.

Schedule B Page 1 of 3

Schedule B

CVRD and Cowichan Valley Noise Comparison Chart


Bylaw No. 102 A bylaw to regulate or prohibit objectionable

noise

Cowichan Valley Regional District

Bylaw No. 3723 A bylaw to regulate or prohibit the making of

certain noises within the electoral areas of the regional

district

Interpretation (102)/Definitions (3723)

“Persistent” means continuous noise or sound lasting more than 5 minutes or erratically occurring for a cumulative duration of 5 minutes or longer in any 15 minute period.

“Continuous sound” means any noise or noises, other than construction noise, continuing for a period, or periods, totaling 3 minutes or more in any 15 minute period. “Non-continuous sound” means any noises or sounds other than continuous sound and construction noise.

Objectionable and Disturbing Noises (102)/ Objectionable Noises or

Sounds (3723)

Objectionable and Disturbing Noises. The acts listed in schedule “A” to this bylaw are considered by the board to cause noises or sounds which are objectionable or liable to disturb the quiet, peace, rest, enjoyment, comfort or convenience of individuals or the public in the neighbourhood or vicinity of those acts. (see schedule “A”)

Objectionable noises or sounds. The following noises or sounds are deemed to disturb the quiet, peace, rest, enjoyment, comfort or convenience of individuals or the public and shall not exceed the sound levels noted.

Residential noise: between 7am – 9 pm (decibel level not to exceed 60), 9pm – 7am (decibel level not to exceed 50).

Construction (decibel level not to exceed 85 between 8am – 9pm. Changes to 9am on Sunday and holidays).

Power equipment (decibel level not to exceed 90 between 8am – 9pm. Changes to 9am on Sunday and holidays).

Continuous sounds that exceed decibel level 60 between 7am – 9pm and 50 between 9pm – 7am.


Non-continuous sounds that exceed decibel level 80 between 7am – 9pm and 65 between 9pm – 7am.

Prohibition by Time or Place (102)/General Regulations (3723)

No person shall commit, cause or permit the commission of an act listed in schedule “A” to this bylaw which results in the emission of a persistent noise which is audible at a residential premises or in a public place in the vicinity during the period of time specified in respect of that act in schedule “A”. (see schedule “A”)

No owner, occupier, person shall make or cause, or permit to be made or caused, any noise or sound which disturbs, or is liable to disturb, the quiet, peace, rest, enjoyment, comfort, or convenience of individuals or the public; or exceeds the sound levels prescribed in this bylaw.

Exceptions (102)/Exclusions (3723)

The prohibitions do not apply to the emission of sound in connection with an act listed in schedule “B” to this bylaw. (see Schedule “B”)

The making of noise which is usual to the uses that are permitted within each zone of the applicable zoning bylaw.

Enforcement The enforcement of the provisions within this bylaw occurs in accordance with the Comox Valley Regional District enforcement policy (Reference no. 4000-00, date: February 3, 2010).

Every bylaw enforcement officer is authorized to enforce this bylaw and, for that purpose, may enter at all reasonable times any real property to ascertain whether the provisions of this bylaw are being observed.

Investigation Process Bylaw compliance officers

apply the general provisions

associated with “make or cause

any noise or sound which disturbs,

or is liable to disturb and shall

allow the real property to be used

so that noise or sound disturbs, or

is liable to disturb” supported

by a complainants written

statement, visit to the

property and gathering of

evidence.

Bylaw compliance officers rely, successfully, on the general disturbance

Planning and development

brought forth the current noise

bylaw associated with decibel

levels in 2013. They are leery to

rely solely on the meter as there

are several conditions associated

with ensuring accurate

measurements and the question

of

accuracy/reliability has the

potential to be challenged in a

court of law. Bylaw enforcement

officers always apply the general

provisions associated with

“make or cause any noise or sound

which disturbs, or is liable to disturb


provisions within the bylaw to obtain compliance.

and shall allow the real property to be

used so that noise or sound disturbs,

or is liable to disturb” supported by

a complainants written

statement, visit to the property

and gathering of evidence.

To date, bylaw officers have

taken measurements to provide

some insight in order to bolster

or debunk a noise complaint.

However, they have not yet

issued tickets solely based on

decibel readings and have relied,

successfully, on the general

disturbance provisions within

the bylaw.

The noise meter is relatively

new territory for and waters are

still being tested at this time.

They believe it can be a useful

instrument to ascertain if a

complaint has some merit but

would be cautious about relying

solely on meter readings for

prosecution in a court of law.

Bylaw No. 102 – “Electoral Areas Noise Control Regulations Bylaw No. 102, 2010” Page 4

Schedule ‘A’ Prohibitions of Time

Type Section Actions Times

Prohibited

Electronic Devices

1.

If the level of noise disturbs, then the operation of an electronic device or group of connected electronic devices incorporating one or more loudspeakers or other electro-mechanical transducers and designed for the production, reproduction or amplification of sound, including but not limited to radios, record players, tape decks, compact disc players, televisions, receivers, audio/video tape players and musical instruments.

At all times

Auditory Signalling Device

2.

The operation of an auditory signalling device, including but not limited to the ringing of bells or gongs and the blowing or horns or sirens or whistles, or the production, reproduction or amplification or any similar sounds by electronic means except where required or authorized by law.

9:00 p.m. to 8:00 a.m.

Persistent Sound 3.

If the level of noise disturbs, then persistent barking, calling, whining or other similar persistent sound made by a domestic animal kept or used for a purpose other than agriculture.

At all times

4. If the level of noise disturbs, then persistent yelling, shouting or hooting. At all times

Motor Vehicles 5.

The operation of a motor vehicle including but not limited to all terrain vehicles and motor cycles, other than on a highway or other place intended for its operation.

9:00 p.m. to 8:00 a.m.

Mechanical Devices 6.

The operation of a mechanical device, including but not limited to power saws and compressors, power lawn mowers both gas and electric powered.

9:00 p.m. to 8:00 a.m.

7. The operation of sawmills whether portable or permanent, where permitted.

9:00 p.m. to 8:00 a.m.

8. Any type of manufacturing, processing, assembling, fabricating, testing, servicing and repairing where permitted.

9:00 p.m. to 8:00 a.m.

Appendix A Page 1 of 3


Schedule ‘B’ Exceptions

Type Section Exemptions for sounds emitted in connection with the following:

Emergency Measures 1.

Emergency measures undertaken for the immediate health, safety or welfare or any person or persons, or for the preservation or restoration of property unless the sound is of a longer duration or of a nature more disturbing than is reasonably necessary for the accomplishment of such emergency purpose.

Works or Activity 2.

There are exemptions for sounds emitted between 7:00 a.m. and 9:00 p.m. on any day except Sunday, and on Sunday between 9:00 am and 9:00 pm for works or activities associated with and necessarily incidental to: (a) constructing, erecting, reconstructing, altering, repairing or demolishing of buildings, structures or things; and (b) excavating, grading or filling land, rock drilling and blasting.

3.

There are exemptions for sounds emitted between 7:00 a.m. and 9:00 p.m. onany day for works or activities associated with and necessarily incidental to: (a) installing, altering, repairing or removing public facilities or utilities; (b) well drilling; or (c) logging or forest related activities.

Activities 4.

Traditional, religious or other activities listed below: (a) fireworks under permit; (b) special events held under the “Comox Valley Regional District Special Events Bylaw No. 2155, 1999”; (c) church bells, call to prayers and other like noises; (d) dances, concerts, fairs and other events held until midnight at community halls or other public venues which the public is invited to attend but which are not large enough to require a special event permit, whether or not tickets are required. This exception does not extend to any private parties or events other than weddings which occur on private property; (e) law enforcement activities at the Courtenay and District Fish and Game Protective Association facilities for law enforcement training purposes under permit, as per schedule ‘C’ of this bylaw, as authorized by the manager of bylaw compliance and special investigations or designate.

Shouting 5. Shouting in relation to games played in a community park or school grounds.

Mechanical Motorized 6. Operation of mechanical or motorized equipment for the purpose of

cutting grass on a golf course or for agricultural purposes.

7. Logging or other forestry activities undertaken in periods of high risk for forest fires and which are mandated by enactment to be carried out during specific times.



Schedule ‘C’ Permit to authorize law enforcement activities at the Courtenay and District Fish and Game

Protective Association facilities for law enforcement training purposes Noise Permit Application The following is an application for a permit to allow for night training exercises, for a single law enforcement agency, at the Courtenay and District Fish and Game Protective Association (CDFGPA) facilities located at 3786 Colake Road, near Courtenay, B.C. This permit application only applies to the Electoral Areas Noise Control Regulations Bylaw No. 102, 2010. CDFGPA official making this application: Name: __________________________________________________ . Title____________________________ . Phone Number: _________ . Signature:____________________________ . Date: _____________ . Stipulations:

1) Permit application fee is $10.00 2) All noise that is liable to disturb the quiet, peace, enjoyment, comfort, or convenience of

individuals or the public in the neighbourhood or vicinity, must conclude before 11:00 pm on the dates requested.

3) All night training exercises that produce the above noise must conclude before the Friday of the long weekend in May of any year.

4) The applicant must provide notification in the following manners, and provide evidence of said notification, prior to the issuance of the permit:

a. To the Comox Valley detachment of the RCMP in writing; b. To the Village of Cumberland in writing; and c. To the public by way of advertising in at least 2 consecutive issues of a local, widely

read newspaper. 5) The Comox Valley Regional District may refuse the issuance of this permit if conditions

within the permit have not been met or there is satisfactory evidence that the conditions will not be met.

Event Information: Agency utilizing the Courtenay and District Fish and Game Protective Association facilities: ______________________________________________________________________ Brief description of event including approximate number of attendees: ___________________________________________________________________________________________________________________________________________ Dates of Event: Start Time: End Time: 1) 2)


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