Appeals of Nita Lake ruling launched 

Project remains in limbo while court sets a date for hearing

The Resort Municipality of Whistler and the Nita Lake Lodge Corporation are both appealing last month’s B.C. Supreme Court decision which declared the Nita Lake Lodge development bylaw illegal.

Two separate appeals were filed on Thursday, April 8 at the B.C. Court of Appeal. The documents do not list any reasons for the appeals at this time.

George Macintosh, lawyer for Keith and Rosalyn Lambert who launched the original lawsuit against the RMOW, said his clients would be defending the appeal.

Neither John Haibeck, the developer of the Nita Lake Lodge, nor anyone at the municipality can comment about the appeal process at this time because it is back before the courts.

But Macintosh offered some comments on the appeal process in general.

He said the process could take up to six months.

"They file a written argument in the court of appeal and we file a written argument in response and then there’s an oral hearing... and normally that’s at least six months down the road."

He did not know if the RMOW or the developers would seek an earlier hearing. This could be hard to get said Macintosh, as summer approaches.

"Taking into account everybody’s schedules, it may bounce it into the fall anyway," he added.

The appeals were announced just before a temporary stay of all activity at the development sites was due to run out.

In the original lawsuit the Lambert’s sought an order than the project be "deconstructed."

Madam Justice Humphries, who heard the arguments over three days last month, declared a temporary 30-day stay of the deconstruction order when she declared the development bylaw illegal on March 15.

She went on to explain her position in a Supplemental Reasons for Judgement paper, after the developers and the municipality asked for further clarification.

"While the bylaw has been declared to be illegal, no ‘deconstruction’ or further construction would take place within the next thirty days, with the liberty to either party to apply for further orders," wrote Humphries.

Now that the appeal process has been launched, Macintosh said the sites will most likely remain undisturbed for the time being.

"We could come in and seek an order now for deconstruction but if there’s an appeal pending, the court of appeal might stop an order for deconstruction," said Macintosh.

"Conversely, if the other side wanted to start building again, we would probably be able to get the court to stop that until the appeal was heard."

The bylaw which Humphries ruled illegal allowed a four-storey boutique lodge and a train station on a three-acre parcel of land overlooking Nita Lake, along with development on additional parcels of nearby land.

More importantly the bylaw allowed a list of amenities as part of the development package. Among those amenities is a large portion of employee housing and 25-acres of protected wetlands.

The Lambert’s challenged the bylaw on the basis of those amenities, claiming council would have never have approved the development bylaw had the amenities not been part of the deal.

Madam Justice Humphries sided with the Lamberts.

Since then, the municipality has released a statement, suggesting the reason for the judgment is based on a technical flaw in the bylaw.

The statement read:

"Had the base density in Bylaw 1650 been slightly higher (i.e., 150 square metres instead of 100 square metres), the bylaw would likely have escaped this judicial scrutiny."

Since Humphries’ ruling Keith Lambert has expressed an interest in sitting down with both sides and negotiating an agreement suitable to all parties.

"I would like to see this development be approved but on a reduced scale," he said in an earlier interview with Pique Newsmagazine .

In the meantime as the appeal process gets underway, Macintosh said he is unaware if Whistler is reworking a new bylaw to replace the flawed one.

"I have no idea if Whistler is doing anything on any other front, like coming up with any new proposed bylaw or anything like that," he said.

"(The appeal process) doesn’t stop them from going on both routes at once."

Again, the municipality could not comment.

The RMOW statement released on Tuesday afternoon said:

"The municipality believes that the successful development of the project, and the attainment of significant community benefits, are important to the future of the resort community. As well, the municipality trusts the majority of the community will continue to be fully supportive of the project and of the municipality’s continued efforts to ensure the project proceeds in the best interests of the community."

The two appeals differ slightly.

The RMOW wants the order set aside, whereas the developers are looking for the Lamberts’ action to be dismissed and their counterclaim allowed, which seeks damages against the Lamberts for the very fact of having filed the action in the first place.

The B.C. Court of Appeal has not yet set a date for the hearing.

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