BCAB #1406int - Building Use, Hotel or Condominium, Article 18.104.22.168
November 15, 1995
Re: Building Use, Hotel or Condominium, Article 22.214.171.124
The project in question is a multiple occupancy building containing a golf clubhouse (Group A) on the first storey and residential strata title apartments (Group C) on the second and third storeys. There is a "rental pool covenant" registered against the title which requires the units to be rented when they are not occupied by their owners.
Reason for Appeal
If the upper two floors are considered as an apartment use they would need to comply with Article 126.96.36.199. which requires very limited access for persons with disabilities. However, if these two floors are considered to be a hotel Article 188.8.131.52. would apply and considerably more access would be required.
The appellant contends that the residential floors will be primarily occupied full time by their owners and will not be used as recreational properties only on weekends and holidays. Therefore, regardless of the rental pool covenant, the units will not be available for rental to the traveling public and the building should not be considered as a hotel. Further, the configuration of the building does not support a hotel designation because the facilities associated with a hotel, such as a registration desk, room service, direct access to the public lounge or restaurant on the first storey and "drive-up" service, are not provided. Conversely, there are several items that support the condominium apartment designation such as strata lots, common and limited common property, secured individual parking and strata fees.
Building Official's Position
The building official maintains that the designation of hotel has been consistently applied to residential buildings covered by a rental pool covenant based on the building's configuration and the facilities offered. It is the building official's position that this building's configuration in combination with the rental pool covenant does lend itself to use as a hotel.
Appeal Board Decision #1406
It is the determination of the Board that, in accordance with Article 184.108.40.206., the terms hotel, motor hotel, motel and auto court shall be assigned their common meanings. The building in question does not conform to the common meanings assigned to these terms primarily because the availability of the units to the travelling public is controlled by the individual owners rather than by a single operator. Based on the information supplied, the individual dwellings are made available to the rental pool at the discretion of their owners and the rental pool operator does not control the degree of availability. Therefore, the building is not a hotel as intended by Articles 220.127.116.11. and 18.104.22.168.
George R. Humphrey, Chair