Signs warn residents of convicted sex offender James Conway outside the halfway house where he’s living in Abbotsford, B.C., in September.Darryl Dyck
The City of Abbotsford's zoning bylaw does not prohibit a residence from being used to house a convicted sex offender, says the response to a city lawsuit.
The Abbotsford Police Department issued a public warning about the offender, James Conway, in August. The department said Mr. Conway, who is developmentally disabled, would be living in the Fraser Valley community and has multiple convictions for sexual assault and sexual interference.
Mr. Conway moved into a home that is being rented to an agency funded by Community Living B.C., which provides support to individuals with developmental disabilities. Mr. Conway's presence at the home, in a rural area known as Bradner, drew repeated protests from neighbours. Police have said the home was vandalized several times.
In early November, the city filed a lawsuit against the owners of the home, the agency the residence was being rented to, and one of the agency's contractors. It said the home was improperly being used in a commercial manner.
But in its response to civil claim, the defendants deny violating the zoning bylaw.
"Residential leasing of the property is an acceptable use under the applicable zoning bylaw," the response says.
It says the bylaw defines a dwelling unit as one or more habitable rooms designed, occupied or intended for occupancy by one or more persons. It says the contractor and the tenant are allowed to use the property in such a manner.
The response to civil claim says the agency, W.J. Stelmaschuk and Associates Ltd., leased the home from one of the owners, Brian Benjamin Vos, in July. It says the contractor, Ed Holroyd, is responsible for providing assistance to the two individuals in the home "suffering from disability."
The response to civil claim says the city's lawsuit should be dismissed with costs.
The province and legal experts have said they cannot recall another instance in B.C. in which a municipality used zoning to try to remove an offender. While such attempts are unusual in Canada, zoning has long been used to banish sex offenders in the United States.
Abbotsford Police, in issuing their public warning four months ago, said Mr. Conway is under several conditions. He is not to leave his residence except when in the company of an approved individual for an approved purpose. He also cannot have any contact with people under 18, consume alcohol or non-prescription drugs, or possess weapons.
The department has noted, however, that Mr. Conway has convictions for failure to comply with a court order and breach of recognizance.
Constable Ian MacDonald, a department spokesman, in an e-mail said Mr. Conway remains in the Bradner home. He said there have not been any incidents of vandalism at the home since police installed cameras outside – as well as signage advising of them.
In late September, police announced someone had flooded the home by turning on a hose and running it into the roof area. They said damages to the home were likely in the tens of thousands of dollars.
The city, in its notice of civil claim, said the property is located within the Agricultural One Zone, meaning it could not be rented out in such a manner.
"The city has demanded that the defendants cease the present use of the property. The defendants have refused to cease the current use of the property," it said. It was seeking "a declaration that the defendants are contravening the zoning bylaw by using the property, or allowing the property to be used, for commercial, institutional and care uses which are not permitted as a principal use."
The city also asked for costs.