Skip to content
Join our Newsletter

Nita Lake bylaw did not allow for a hotel

Judge’s ruling might have been different with 50 extra square metres Round one in the battle of the Nita Lake Lodge may have gone to its main opponent, Keith Lambert, but the war is far from over, according to one legal opinion.

Judge’s ruling might have been different with 50 extra square metres

Round one in the battle of the Nita Lake Lodge may have gone to its main opponent, Keith Lambert, but the war is far from over, according to one legal opinion.

Michael Vaughan, a municipal lawyer with Owen Bird, who is not connected to the controversial lawsuit, reiterated this week that the municipality has the authority to put a hotel at the south side of Nita Lake.

But unlike the Nita Lake Lodge bylaw, which was quashed by the B.C. Supreme Court last month, the hotel development must abide by the Local Government Act.

"Whistler isn’t really at a disadvantage here in terms of trying to permit this development to go ahead," said Vaughan, who has reviewed the B.C. Supreme Court judgment, which came down on March 15.

"Their disadvantage is that they have to structure the bylaw in stricter accordance with the (Local Government) Act. So they can still do what they wanted to do, they simply can’t do it the way they did it."

Last October council approved a zoning bylaw that created the CC3 zone in the Nita Lake Lodge development.

In the zone, the municipality set a maximum hotel size of 100 square metres (or just over 1,000 square feet) for the piece of land on the south shores of Nita Lake.

The bylaw then went on to increase the density on that site for the Nita Lake Lodge to more than 5,000 square metres if the developer provided certain amenities.

Those amenities included protecting 25 acres of sensitive wetlands, 120 units (or 330 beds) of employee housing and several cash donations for things like public trail enhancement, fish habitat and public art.

Madam Justice Humphries, who ruled on the case, said the developer could never conceivably build a hotel at 100 square metres.

By increasing the density to 5,000 square metres to allow the hotel, the municipality was in fact changing the basic land use of the Nita Lake site while getting amenities.

This is illegal under the Local Government Act.

To some, who are following the case closely, this appears to be a mere technicality.

"Somehow a mistake was made," said retired lawyer and former Whistler councillor Garry Watson, who dealt specifically with municipal law when he was general counsel for the B.C. Place negotiations in Vancouver.

"In other words, (the Lamberts’) concern was their view and they searched for every possible way to invalidate the bylaw, all the technical issues and there were other technical issues raised as well."

They won, said Watson, on a "defect in the bylaw."

Under the Local Government Act, municipalities can legally increase density in exchange for amenities. In fact, it is the only way municipalities can get amenities.

"It’s not unusual for a developer to offer some benefits to a municipality in the course of a rezoning (and) it would appear, and I’m only reading between the lines, it would appear to me that Whistler wanted some of these (amenities)," said Vaughan.

"So they were trying to create a bylaw where it was legal for them to seek these things on the only basis in the Act under which you can seek amenities (which is increasing density)."

It is still unclear why the municipality zoned the land for 100 square metres.

No one at the municipality has been willing to comment on this case to date.

A press release from the municipality was issued Wednesday afternoon to clarify the municipality’s position.

It stated: "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.

"This was the only flaw in Bylaw 1650 noted by the court."

It is clear to Lambert’s lawyer George Macintosh that the judgment was not based on a technicality, rather it involves the fundamental issue of selling zoning for amenities.

"I don’t believe the judge regarded it as a technicality," he said.

"For what my views are worth I certainly don’t regard it as a technicality. I regard it as a fundamental difference between land use powers and powers to increase density.

"Whistler was pretending that it was just increasing density for contributions but in fact it was giving a land use."

Vaughan who is independent from the case was not sure if the Lamberts won their judgment based purely on a technicality.

"I don’t know whether it’s fair to characterize it as a technicality or not," said Vaughan.

"The judge certainly looked at the overall purpose of the zoning bylaw and decided that that couldn’t be a zoning bylaw if it essentially did not provide for the permitted uses.

"But if you look at the bigger picture it probably is a technicality because the bigger picture is... whether or not Whistler had the authority to allow for a hotel there. Obviously, Whistler does have that authority but they have to exercise it in accordance with the Act."

The municipal press release also stated that:

"It must be pointed out that the Court did not find fault with the proposed development, the Council process, or the amenities to be received by the community and nothing in the reason for judgment suggested otherwise."

The judge, however, neither sanctioned the amenities nor did she disallow the amenities in this case. She did not deal with the subject of the amenities at all, focusing instead on the legality of the zoning bylaw.

In her judgment she wrote: "The real issue before me, then, is the validity of Bylaw 1650."

It is unclear still what the next steps are in the case.

The municipal press release stated:

"The RMOW is continuing to review the implications of the court’s decision to determine the most appropriate actions, if any."

The old bylaw is definitely illegal, making further construction on the site also illegal. According to Diana Waltmann, information officer with the RMOW, work has stopped on the site without the municipality having to issue a stop work order.

The municipality could redraft the bylaw, removing the 100 square metres base density and allowing a base density that could actually permit a hotel use.

If this happens there would be another public hearing and another chance for the community to comment on the case.

Alternatively there could be an appeal on the judgment, but that would likely be a longer process.

"I think the only chance of this getting resolved peacefully now... is if (the Lamberts) realize that... council really does have the appetite to see this project go ahead," said Watson.

Last week Lambert said he was waiting to sit down and negotiate with the developers and the municipality to see a smaller hotel built on that site.