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Residents’ legal opinion contradicts RMOW’s

Whistler under ‘no obligation’ to rezone property so asphalt plant can operate legally

The asphalt plant saga took a twist this week when future residents of Cheakamus Crossing obtained a legal opinion that seems to contradict information released by the municipality.

But the Resort Municipality of Whistler says the opinion is meaningless because the group's lawyer at West Coast Environmental Law doesn't have all the information.

The municipality released an official statement Tuesday morning that said: "In summary, while we do not disagree with some of the conclusions of the West Coast Environmental Law, we do not agree with all of the conclusions that they came to because they are not based on all of the relevant factual information."

The statement, which was not attributed to any individual, also said West Coast Environmental Law did not have "access to the additional, confidential background information that informed the previous legal opinions received by the municipality from several different lawyers."

"Unbelievable!" said resident Tim Koshul after reading the statement.

"It is certainly not an even playing field when they ask us for a legal opinion, we get a legal opinion, and then they say, 'Yours doesn't make sense because we didn't give you everything.' It is unbelievable that they have been keeping things secret from us."

The evolving disagreement over the legal opinion began on Thursday, when Koshul e-mailed the document to local council members, municipal staff and media outlets.

The opinion is worth between $8,000 and $10,000, according to Koshul, and was put together pro bono by staff lawyer Andrew Gage.

Among other things, the opinion states that the asphalt plant doesn't comply with zoning and isn't grandfathered into the law.

Council has no legal obligation to allow the asphalt plant to continue to operate at its current location and "certainly no obligation to rezone a property to allow the asphalt plant to operate legally," the opinion reads.

"The question of whether any property should be rezoned should be based upon the community's best interests, including consideration of the health and environmental risks of the asphalt plant and other considerations," writes Gage.

The opinion was put together based on information sent to West Coast Environmental Law by residents, including bylaws, zoning, newspaper clippings and Freedom of Information requests.

Although the municipality has dismissed the legal opinion, the group will still use it as tool at the public hearing on Sept. 7.

"We need to get out there on Sept. 7 and make statements," said Koshul. "These guys have to know that you can't tell the people that elected you to 'trust us'. Those days are over politically."

He added that he was shocked the municipality's response was sent to the media only, without copies forwarded to Gage or himself.

Now, in the lead up to the public hearing, Koshul and others are carefully preparing their statements.

Koshul said they are making sure they "don't bore council with stuff they have already heard before," but they also want to make sure that as many people as possible come out and voice their concerns.

Based on e-mails he has received, Koshul estimates there will be about 80 to 100 people speaking at the public hearing. Thirty of those e-mails have come from people Koshul has never heard from before.

"It has been a long, drawn out process, and I think both sides are tired," he said. "This has been very exhausting for a lot of people. I sent out a group e-mail thanking everyone. We are at the 11 th hour here, and this has been an amazing journey."

Koshul said regardless of what happens next week he believes his group has done good work for the future of Whistler.

He is proud that his new neighbourhood will be filled with "the kind of people that speak up when something is not correct" and he hopes people continue to ask questions of their elected officials and municipal staff.

Meanwhile, the municipality plans to include their lawyer's response to the new legal opinion in next week's council package.

"We have agreed to make our legal counsel's full response to this letter publicly available," the municipality's statement read. "... Both the West Coast Environmental Law letter and our legal counsel's letter will be included together in the record of correspondence for the public hearing scheduled for September 7, 2010."

The council package will be released on Friday. The public hearing which will take place at 6 p.m. Tuesday, Sept. 7 at Franz Wilhelmsen Theatre at MY Millennium Place.

To accommodate the large number of speakers expected to attend the meeting, a special council meeting will be held at 4:30 p.m. that day so council can handle staff reports that would normally be part of the regular meeting.