A decision by Resort Municipality of Whistler (RMOW) councillors more than a year ago still has a Whistler resident disappointed with the community’s elected officials going against their own staff and bylaws.
The decision, made at the March 21 council meeting in 2023, was about a request for a variance allowing a Rainbow neighbourhood resident to keep a structure built up against the property line well over two years previously, against the wishes of their immediate neighbour—and municipal bylaw.
The RMOW’s own bylaws on auxiliary structures prohibit anything built within 2.5 metres of an external property line, so the neighbour called it in way back in late 2020, and a years-long back and forth between the owner of the structure who believed they were within code, the neighbour, and the RMOW began that culminated in a 4-3 vote to allow the structure to stay where it was.
The neighbour who originally called in the issue, Beverly Brown, told Pique that from the beginning, bylaw staff were adamant the structure—a 2.63m-tall shed that its owners wanted to use as a sauna – was not permitted given its location 0.35m from the property line, but the process of moving it was drawn out for years before councillors decided to just let it stay there.
“I never understood why they didn’t just put their foot down and say ‘you gotta move it’ ... I never really got an answer.”
Brown explained the small yards in the neighbourhood and the size of the structure meant her back yard was negatively impacted by its construction, and the reason why she called it in in the first place.
“We are a perfect example of why those zoning bylaws are put into place,” she said. "Those are small backyards, and [structures] need to be 2.5m off the side of the parcel.”
But all of that is in the past now, because her neighbour got the variance they wanted—it's the way council voted to allow it that has her disappointed and disillusioned with the way the community’s elected officials toe their own bylaws.
“They should have gone with the bylaw, they should have upheld that, and it shouldn’t have been based on how they felt,” she said.
Indeed, freedom of information documents requested by Brown, and passed along to Pique, show municipal staff were adamant from the beginning the structure was against code, and either required a variance to allow it, or needed to move. In the end, a variance allowed it, despite staff recommending against it.
The vote back in March 2023 came down to a 4-3 split after a 10-minute staff presentation recommending the variance be denied and a brief tit-for-tat questioning by councillors seeking clarification, before Mayor Jack Crompton asked if anyone would support the motion as presented (being a denial of the variance).
That question triggered a few seconds of silence before a motion was proposed by Councillor Jen Ford to approve the variance, and go against the staff recommendation and the municipality’s bylaws, because she didn’t see malice in its construction to begin with.
The foundation for her point of view was based on the assertion of the owner of the structure that they were under the impression the structure was a-OK—as seen in documents from the owner submitted as part of the council package on the day of the vote.
What followed Ford’s motion was a long discussion with all elected officials putting in their two cents on the nature of the issue, the cause of it being before them in the first place, any hardship involved in moving the structure, bylaws as they were written, and the perils of a municipality wading into a neighbourly dispute.
At the end of the discussion, Councillors Ford, Jessie Morden and Arther De Jong were OK with leaving the structure where it was, while Crompton along with Councillors Jeff Murl and Cathy Jewett came down on the side of bylaw.
Coun. Ralph Forsyth stood out as the swing vote. He said he believed he saw nothing in staff correspondence with the owner of the structure that said they could build it where they did, so there was no “smoking gun” that incriminated the municipality or exonerated the owner.
“The municipality followed its rules, someone complained, you go check it out, there’s back and forth, there’s nothing written down that says anything to the contrary of what we’ve heard here,” he said.
Despite that, he voted to approve the variance.
“At the same time I’m still like, I don’t care, it's a sauna, whatever,” he said.
The result came as a surprise to Brown, who told Pique she felt let down despite following the municipality's bylaws and processes since the beginning. She said the rationales given by each of the councillors that supported going against bylaw did not hold up, and felt her situation was given little consideration.
“They’re not backing up their own zoning bylaws," she said. "If one owner can do it, why can’t all owners do it in Whistler? They don’t back up their own zoning bylaws. I felt very let down when the council voted that through.”
For their part: Ford said she didn’t believe there was malice in the construction of the structure on the property line, and moving it would be a hardship; Morden said there were “a lot of inconsistencies” in the documents before them, and that denying the variance would be penalizing a homeowner; De Jong said he didn’t believe the structure took away from the community as a whole, and as noted, Forsyth said bylaw hadn’t done anything wrong and approved it anyway.
On the opposing side: Crompton said he saw no reason to consider a variance because the bylaws were clear; Murl said if a complaint came in that was found to be justified, it was reasonable for the municipality to expect a resolution along the lines of bylaw guidance; while Jewett acknowledged larger variances were permitted for larger, more expensive lots, but voted against it because of bylaw's recommendation.
More than a year after the decision was made, Mayor Jack Crompton explained to Pique in an email that situations where council didn’t side with bylaw were “not common.”
“Council examines the facts of each case and comes to the table with an open mind. Ultimately, it is up to council to make the final decision on topics that are in front of them.
“In some cases, with all the facts before them, approving a variance to a bylaw does happen. This isn't done lightly and therefore, with the appropriate rationale, should not undermine public trust.”
He added that anyone who felt they were impacted by a decision and wanted it reviewed could initiate a judicial review process.
During the vote in 2023, councillors had determined that the structure would still need a building permit after the variance was waved through, but in April 2024, the RMOW was overruled by the BC Building Code Appeal Board in requiring a building permit for the structure after it was disputed, and the municipality officially closed the file.
