CANMORE – An appeal against a stop order for a home being illegally used as a tourist home was denied by Canmore’s quasi-judicial appeal board.
The Town’s Subdivision and Development Appeal Board (SDAB) rejected an appeal by Hans Herchen, the owner of 133 Wapiti Close, noting municipal enforcement had followed Canmore’s bylaws in issuing the stop order, the home isn’t zoned as a tourist house and it was his second offence.
“The board is satisfied that the stop order was properly issued by municipal enforcement,” stated SDAB in its July 5 decision. “The agent for the appellant also confirmed they have no concerns with how the stop order was issued.”
The order highlighted how the home is zoned for only residential use and “tourist homes are neither a permitted nor a discretionary use” and “given the history of illegal use, the board wishes assurance that no further contraventions of the land use bylaw will be committed.”
Herchen, the Wapiti Close homeowner, did not want to get into the specifics of the appeal board’s order but told the Outlook “everybody in Canmore should be treated equally and fairly” and “it's very common practice to use short-term rentals in Canmore.”
“All I’m willing to say is everybody should be treated equally. To start picking which citizens are treated one way and which are treated another is not good for the town, so everybody should be treated fairly,” he said.
Under the Municipal Government Act, an SDAB order can be appealed but Herchen didn’t say if he would go that direction.
At the June 27 hearing, Herchen admitted to running his Wapiti Close home as an illegal tourist operation.
However, he asked the board to allow guests who booked his home before the stop order was issued to continue to use it for vacations. He said he had eight remaining bookings as of June 27 and the last one would finish Sept. 8.
“I give you my commitment that as of Sept. 8, with your respectful cooperation, it will not continue,” he said at a Thursday (June 27) appeal board hearing.
The board had little sympathy for Herchen, particularly due to a 2018 infraction that had the same home issued a fine and SDAB ordered it to stop being used as a tourist home.
Herchen said he would look at doing monthly rentals in the future and stop short-term use.
“I was simply doing what so many people in Canmore were doing and I was under the assumption that it was acceptable,” Herchen said, stating he typically did about 15 online bookings a year.
The Town issued a stop order April 26 following a lengthy investigation after it received several public complaints that started in spring 2023. Town staff found the property had advertisements on Airbnb and VRBO, which included several online ads with pricing ranging from $1,292 and $2,415 a night.
“The advertisements indicate use of the property in a manner which is consistent with the definition of tourist home in the land use bylaw,” stated a staff report. “Specifically, the intent of occupants to stay for short-term vacation purposes (nightly rental), the use of a system of reservations, commercial nature of use, and advertising as a vacation property. neighbourhood reports of a pattern of use involving short-term vacation stays also helped to confirm the use of the property as tourist home.”
The staff report highlighted the home is outside of where tourist homes are permitted. The development permit for the home – issued in 2008 – allows only for a single-detached home and not a tourist home.
Herchen had concerns with the Town requiring a statutory declaration be made that would allow Town staff to check if the property was used for tourist home uses.
Herchen did not want to comment on the statutory declaration, but at the hearing, his lawyer – Jennifer Sykes of the Calgary-based firm Caron and Partners – took issue with Town staff asking for it to be included.
“This is an inappropriate requirement. … This is a gross invasion of privacy. We’re talking about Hans’ home and his family home. Hans does not consent to have the development authority come into his home and take photographs of his personal property nor should he have to,” she said.
Town staff argued at the June 27 hearing a declaration was needed due to Herchen’s past guilty infractions and though sympathetic to people who booked his home without knowing it was illegal, other property owners could be negatively impacted.
Town staff also noted they investigate illegal use of tourist homes on a complaint basis and had about 50 on Herchen’s home.
Rob Owen, a resident of Wapiti Close, wrote in a letter to SDAB how his family and neighbours “feel negatively impacted” by 133 Wapiti Close.
“There are regular large party renters of this property that are significantly disruptive to the community, including excessive noise in the hours between 10 pm and 4 am and illegal … and excessive parking of vehicles in the quiet cul-de-sac that we all reside,” he wrote.
Bruce Mathews and Nancy Fraser wrote in a letter to the board they’ve experienced year-round issues from Herchen’s Wapiti Close home.
“We have been awakened at [3 a.m.] and [4 a.m.] on numerous occasions to noise so loud that we can actually make out the entire conversation that is occurring above us. It is literally like they are sitting in our bedroom,” stated the letter.
The board sided with the Town, stating Herchen would need to give evidence he stopped using his home for tourist uses by July 12 and “subsequent inspections may be carried out subject to 48 hours notice provided by the Town.”
The statutory declaration has to be given to the Town by July 12 and proof given all reservations were cancelled.
