A B.C. Supreme Court Justice has upheld a city council decision to deny a dog breeder a business licence to operate out of her home.
Roxanna Hamilton, who has been running Summer Knight Kennel at 3622 Hazel Drive had applied for a judicial review after council voted 6-1 following a special hearing in May 2019 to refuse her a business licence.
Hamilton had taken her case to council after the city's planning department turned down her request for a licence because the use conflicts with the zoning bylaw. In part, she argued it was a non-conforming use that predates the 2007 bylaw by about seven years. Only Coun. Frank Everitt agreed with that position.
In a decision issued Friday, Justice Michael Tammen found in favour of the city.
In part, Hamilton's counsel, Jon Duncan, had argued during a hearing before Tammen that his client deserved a standard of procedural fairness on the level found in court and that the type of procedures used by professional regulatory bodies may be appropriate.
Tammen disagreed, saying that Hamilton has not been denied the ability to practice in her chosen profession, only that she could not carry on her business at the current scale she had been at her home.
"She can reduce the number of adult dogs on site or relocate the business to an appropriately zoned premises," Tammen said. "She is not rendered unemployed as a consequence of council's decision."
The city's 2007 zoning bylaw restricts households to no more than three adult dogs.
Also at issue was whether Hamilton was the victim of a change in the definition of the word "kennel" over the time since a bylaw referring to home businesses was enacted in 1980. Hamilton had submitted it had expanded to include a place where dogs are bred as well as where dogs are boarded. Tammen found there was no evidence to support the position.
Hamilton also had concerns about a comment from Coun. Murry Krause that he visited the neighbourhood prior to the hearing. Tammen found the act was "not akin to a juror in a trial doing investigations outside a courtroom setting,"
"Councillor Krause likely put himself in a better position to draw the inference by his visit to the neighbourhood, but no better than a councillor who by happenstance was familiar with the neighbourhood either because they lived there or because it was on their regular commuting route," Tammen said. "Such familiarity could not disqualify the councillor as a decision maker."
Hamilton's operation had been the subject of complaints from neighbours, primarily about noise, over the years.
