Same Question, Shifting Standards

On the same legal question — whether pre-existing buildings are "legal non-conforming" — the Islands Trust has applied different evidentiary language on different islands and in different years, with no published standard. The concept appears in 597 documents across the archive, and cases from seven local trust areas show how differently it is handled.

"Legal non-conforming" status — whether a building that existed before a bylaw can lawfully remain — is one of the most consequential questions the Islands Trust decides. It publishes no standard of proof for it. The record shows how differently the question has been handled.

• On Saturna (2012, file SA-RZ2012.1), staff wrote that pre-existing non-conforming dwellings would "not be deemed to be increasing" density and that "there is evidence to suggest the residences are pre-existing" — conditional language, paired with a recommended bylaw-amendment path.^[1]
• On Galiano (2012), staff applied a "commitment to use" evidentiary test, warning that commitment "does not protect structures that were built illegally."^[2]
• On Denman (2022–2023, file DE-SUB-2022.1 / DE-DP-2023.1), the owner's recorded position was that his evidence that the buildings pre-dated the Trust itself "is not being accepted," with staff pointing to a zoning amendment instead.^[3] The same file was later resolved the other way: the committee's November 2023 agenda records an August 14, 2023 Regional Planning Manager determination that the dwellings are legal non-conforming — a reversal that surfaced as a follow-up-list line item, not a published decision with reasons.^[4]

Different islands, different decades, different evidentiary language; and within a single file, refusal followed by unexplained acceptance. Whatever each individual outcome's merits, a land-use authority that decides property rights this consequential with no published standard, no deadline, and no reasoned public decisions is not providing consistent, accountable administration.

This is not a Denman problem

It would be easy to read the file above as one island's bad luck. It is not. "Non-conforming" and its variants appear in 597 documents across the mirrored archive — 254 for "legal non-conforming", 253 for "pre-existing", 126 for "grandfather" — spread across every local trust area. This is not a marginal corner of the Trust's practice. It is a mature, constantly-used part of it.

What follows is the same question, handled on six other islands.

### Salt Spring — the Trust's own staff call it grandfathering

On secondary suites, Salt Spring staff equate "grandfathering" directly with legal non-conforming status under the *Local Government Act*. That matters because it is the Trust's own writing, in its own reports, treating an informal word and a statutory test as the same thing — which is precisely where an owner's expectations and an enforcement officer's can part company.

### Gabriola — status that ends

Gabriola files deal with the END of legal non-conforming status for short-term rentals, and with subdivision conditions requiring that no non-conformity may be created. (GB-LTC meetings, 22 February and 23 May 2024.) The same protection that saves one owner is what extinguishes another's, and the difference is not always visible in advance.

### Galiano — the "commitment to use" test

Galiano files apply a "commitment to use" test: not merely whether a use existed, but whether the owner had committed to it. It is a defensible test. It is also a different question from the one asked elsewhere, and nothing published tells an owner on one island that a different island applies a different one.

### Saturna — pre-existing density

Saturna staff have analysed pre-existing DENSITY rather than pre-existing use — whether the number of dwellings predates the bylaw. Same statute, different unit of analysis.

### Hornby — the question nobody would answer

On the Costello subdivision, a member of the public asked repeatedly whether a non-conforming building on the remainder lot must be removed before subdivision. The question recurs across meeting records. What is instructive is not the answer but how hard it was to get one.

### Gambier — zoning around it instead

At Halkett Bay a camp and assembly use was formally zoned through a site-specific bylaw rather than left to rest on non-conforming status. That is the Trust solving the problem properly — and it shows the tool exists. Whether an owner gets that treatment or a sixteen-month evidentiary argument is not governed by any published rule.

### What the seven have in common

Nothing in the list above is unlawful, and none of it is evidence of bad faith. Each decision is defensible on its own file. The difficulty is that there is no published standard tying them together — no stated evidentiary threshold, no deadline, and no register of outcomes an owner could consult before spending a year of their life on the question.

Thirteen local trust areas, one statute, and a different answer depending on which ferry you take. That is the argument, and it is not Denman's.