Haibeck wants to start building this fall, Lambert taking RMOW to court
A Whistler homeowner has filed a lawsuit against the municipality over the Nita Lake Lodge development project, which was given final approval by council Monday.
"We served a writ last Friday on the municipality," Keith Lambert said on Tuesday night, calling from Australia where he is currently travelling.
He would not comment further on the writ at this time or on council’s final approval of the project.
For developer John Haibeck it was a bittersweet moment Monday evening when council adopted the zoning bylaws for the Nita Lake Lodge development project.
After more than two years of trying he finally had approval to build a four-storey lodge and train station on the south shores of Nita Lake but a potential lawsuit means the fate of his project still hangs in the balance.
"I’m confident that the municipality has done all the right things and I’m confident that there’s probably even more community support because I think this is very self-serving of one resident," said Haibeck.
Lambert, who owns the multi-million dollar Chateau du Lac on the north shores of Nita Lake, filed the writ of summons in the Supreme Court of British Columbia Oct. 3.
The writ briefly outlines six claims. Chief among those claims is a declaration that two zoning bylaws for the Nita Lake project are unlawful and contravene the Local Government Act.
"It means it offends the Local Government Act," explained Michael Vaughan, a municipal lawyer with the Vancouver firm of Owen Bird, who is not involved in the case.
"The two areas where bylaws would typically offend the Local Government Act either would be that it exceeded council’s jurisdiction... or that they had not followed the proper procedure."
Thought the writ does not highlight Lambert’s argument, he explained his position in an earlier interview with Pique Newsmagazine .
The crux of his argument at that time was that the municipality rezoned the land for the Nita Lake Lodge project, which could not support a hotel under the old zoning, because the developer was offering generous community amenities. To put it simply, the municipality sold its zoning in exchange for benefits.
"This is common practice and it’s common practice not only in Whistler but in other places. But there’s strong case law evidence that says it’s unlawful and that’s not in doubt," said Lambert in the earlier interview.
Vaughan said while blatantly selling zoning is against the law, there are tools in the Local Government Act for municipalities to get community amenities as part of development packages.
"The Supreme Court of Canada has said selling zoning is still against the law but you’ve got these amenity provisions in the (Local Government) Act," he said.
Municipalities can accept voluntary amenities from developers but those amenities cannot be required or requested from the government. They can also increase density on a site in exchange for amenities under this provision in the Local Government Act. If they get amenities another way in exchange for zoning, they have essentially broken the law.
"(A) major, major issue in municipal government these days is: where’s the line?" said Vaughan.
In the past there was a land use contract system in place which allowed developers to exchange gifts, services, land and other things for zoning.
This was very common in Whistler as the village developed, said Vaughan. Developers would get zoning and in return they would put in sewer lines or other such community benefits.
Those provisions for amenities however were taken out of the system in 1979 and for more than a decade there was no statutory provision in place that would allow developers to give amenities in exchange for extra density.
"That’s where all the fun happened, where people continued to horse trade for zoning without any particular authority for it," said Vaughan.
"In some cases that was seen as being acceptable under common law, in other words the courts accepted that as being fair game, where the gifts were generally voluntary and not required. Or they were seen as selling zoning and would be invalid."
But he said he did not know of any case where it was contested.
Then B.C. introduced the section for amenity zoning in the Local Government Act in 1991.
"You have the statutory provisions in the Local Government Act now," said Vaughan.
"They are there to be used by local governments in order to allow increases in density and to receive municipal amenities in exchange for their density. So if you stick to the Act you should be OK. It’s only if... the court finds you’ve abused the statutory provision that you’d be out of luck."
Lambert originally challenged the municipality earlier this summer with a letter threatening to take them to court. His actions forced the project back to the drawing board where the municipality reworked the bylaws and removed a $1million donation to health care in Whistler that was originally part of the deal.
Lambert said his intention was never to get rid the amenities; rather he wanted the 80-room hotel scaled back.
"We want council to do the proper job here on zoning and that’s to knock the four-storey, 80-unit hotel on the head and bring it back to a reasonable scale and context. That’s what we want done," he said in an earlier interview.
But the size and scale of the project has not changed and so despite the threat of legal action, council has pressed ahead with the project.
"They didn’t back down," said Haibeck.
"They’re not going to be intimidated and they’re not prepared to negotiate. That really speaks well of council."
Council voted 3-1 on Monday night. Mayor Hugh O’Reilly and Councillor Gordon McKeever cannot vote on the project due to conflicts of interest and Councillor Caroline Lamont was absent.
True to form, Councillor Ken Melamed continued to oppose the development.
"I’m having trouble describing how upsetting the proposal continues to be," he said.
Melamed has consistently expressed concerns that the Nita Lake project will change the face of Creekside for the worse, among other worries with the project.
"I just shake my head how council can pass this and turn a blind eye."
At Monday’s meeting another Creekside resident appealed to council to move parts of the development away from his house to mitigate his noise concerns.
Hugh Oswald told council he wasn’t asking to change the zoning or the massing of the project. He just wanted to massage the layout.
He was told it was too late.
"The developer has already reduced the massing once in response to comments (from the public)," said Councillor Nick Davies, who said he was satisfied the noise issues have been dealt with.
In the meantime the municipality has seven days since the writ was filed to make an appearance at court, essentially recognizing that they have received the writ.
Common procedure then dictates that the municipality will defend itself against Lambert’s claims.
Haibeck said if they cannot reach an agreement then he wants to go to court immediately to try and make the fall construction window.
"We’re trying to get in the ground. We do not want to be starting construction next spring," he said.
"More importantly, it’s the employee housing. That’s the tough part of this whole thing. We’re building a substantial amount of employee housing and we’re trying to deliver it as fast as we can. And so that gets delayed too. That’s the part that really hurts the community."
