If employee housing lost it will be ‘a huge setback’
Though the foundations for the Nita Lake Lodge development may already be in the ground, the future of the project is on shaky footing.
The municipality and the developers were reeling from the news this week and scrambling to plan their next steps after a B.C. Supreme Court Judge ruled the development bylaw is illegal.
Developer John Haibeck would not comment on the lawsuit this week and the municipality could not comment in depth about the future.
"There are a variety of options that we’re going to be considering over the next few days," said Bob MacPherson, general manager of planning and development.
The municipality is rallying to review its next steps. As such, few were willing to comment on what lies ahead.
"We really don’t want to say much until we’ve had an opportunity to meet with our lawyers but like any litigation file, it’s not over ‘til it’s over," said Councillor Nick Davies.
Councillor Ken Melamed, who opposed the development, pointed out that clearly a majority of council wanted to move ahead with this project when they voted on it last year.
"Obviously and clearly the will of council was to approve the lodge," he said.
"I guess it’s likely that there’ll be an appeal."
For that reason, MLA Ted Nebbeling could not comment on the case because it may still go before the court.
If there is an appeal, Keith Lambert will not easily give up his victory.
"We’ll attend to the appeal if it’s appealed," he said.
Another option is that the municipality could rezone the site by drawing up a new bylaw.
"The municipality can always rezone this site, that’s not a problem, but they obviously have to do it in accordance with the law and in accordance with the powers of the Local Government Act," said Michael Vaughan, a municipal lawyer with Owen Bird, wholly unconnected to the case.
"The Lamberts in this battle have certainly pointed out to the municipality that if they are going to do things they can’t do them improperly.
"(The municipality is) going to have to rethink the structure of the bylaw if they want to do the same thing and they probably will have to look very long and hard at the whole process of negotiating for amenities."
The Lamberts’ lawyer, George Macintosh, pointed out that if the municipality rewrites the bylaw, it will force another public hearing.
That would make it the third public hearing for this development.
The recent judgment may also preclude any amenities as part of a new development bylaw.
"The interesting issue going forward is if there’s a new bylaw if whether there’s a public appetite for this project if the amenities aren’t present," said Macintosh.
Though the municipality and the developers are unsure of the next steps, Lambert has a clear idea of what he wants to see happen on the shores of Nita Lake.
He pictures a small boutique lodge with about 30 to 40 rooms.
"I stand by what I would like to see happen here," he said,
"I would like to see this development be approved but on a reduced scale.
"It may not be totally morally right but at least it’s logical because if they did put through a hotel without the benefits... they would have put through a smaller hotel."
Although the court argument focused on the hotel site, the bylaw deals with all portions of the project and as such there are rippling effects with this decision.
"To my understanding the entire bylaw has been struck down so... all of the land involved, all of the zoning, falls with it," said MacPherson.
That includes the zoning on all three project sites: the three-acre hotel site, the 23-acre single family home site and the Alpha Creek wetlands site.
Despite the potential impact of the lawsuit, work has been going on at all the sites because the bylaw was not illegal until Monday.
The Lamberts also sought an order from the court that the project be "deconstructed."
"It is not clear to me what this would involve," wrote Justice Madam Humphries.
"I would prefer to deal with this through a temporary stay of this order for 30 days to allow the parties to implement its effect in an orderly manner."
Vaughan pointed out that dismantling the project is not wholly inconceivable.
In an old case, Wellbridge versus Winnipeg, the Manitoba municipality made a mistake in advertising for a zoning bylaw. The zoning bylaw was eventually overturned but while the case was in the courts, an apartment building was built.
It had to be torn down.
It is not clear if this could happen in the Nita Lake Lodge case.
In an ironic twist the development permit for a portion of the employee housing was to come before council at Monday’s regular meeting. It was struck from the agenda after the news arrived that the municipality had lost the lawsuit.
The project as a whole was to deliver 120 units of employee housing, which equates to roughly 330 beds. The housing was designed as an 88-unit rental project and a 40-unit townhouse project.
"If we lose it, it will be a huge setback," said Tim Wake, general manager of the Whistler Housing Authority.
"This was all planned to get delivered within a year from now so it was well on the way."
The future of the wetlands could now be under question too. As part of the deal the lands were gifted to the municipality for $1 to be preserved in perpetuity.
The effects of this judgment may also filter far beyond Whistler’s borders to other municipalities in the province.
"I think this practice has gone on before in municipalities but I don’t think that the practice has been examined in the courts before," said Macintosh.
"It may have wide ranging implications."
Though he opposed the project at the council table, Melamed is hoping the judgment won’t effect the municipality’s bargaining powers in the future.
"Municipalities have earned the ability and the justification for making deals with developers," he said.
"In my mind it’s all about getting the maximum benefit for the community from a development."
Come what may, it does not appear as though Lambert will back down, particularly after the courts sided with him.
"It isn’t logical for this thing to be revalidated and simply have the same large development," he said.
"That’s only going to encounter further problems for me and my group and I hope this time that council recognize that and come up with something that’s sensible."
