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Nita Lake Lodge zoning ruled illegal

Amenities may be exchanged for increased density but not for zoning that allows additional uses Keith Lambert has been left with bittersweet emotions after a stunning legal decision against the town of Whistler and the Nita Lake Lodge Corporation.

Amenities may be exchanged for increased density but not for zoning that allows additional uses

Keith Lambert has been left with bittersweet emotions after a stunning legal decision against the town of Whistler and the Nita Lake Lodge Corporation.

"I’m pleased that a decision has been rendered," said the part-time Whistler homeowner from Australia on Tuesday.

"But I am disappointed that we had to resort to the courts. This should have been resolved with the developer or with the municipality or with both, and there were plenty of opportunities to do that, I felt."

Lambert, along with his wife Rosalyn, launched a lawsuit against the municipality in October days after Whistler council gave its final approval for the Nita Lake Lodge development.

The complex development, which was years in the making, included a four-storey, 80-room lodge and a train station on the shores on Nita Lake in Creekside, along with 14 single-family homes on a large tract of nearby land.

The deal involved three separate pieces of land as well as a sizeable chunk of employee housing, 25 acres of protected wetland and a host of additional amenities.

All of these amenities were the crux of the Lambert’s argument that came before Madam Justice Humphries in a three day hearing in February.

Humphries agreed with the Lamberts, essentially confirming that the municipality had sold zoning for amenities under the Nita Lake Lodge bylaw.

She explained why she found development bylaw 1650 illegal in a 24-page judgment, which was e-mailed to the lawyers on Monday afternoon.

"In order to be allowed to build a hotel, the Developers have to provide all the amenities listed..." wrote Humphries.

"This is not a situation where the Developers can build a hotel, and will be allowed to build a bigger one if they fulfil certain obligations. This is a situation where they cannot build a hotel at all unless they provide Whistler will all of the amenities listed...

"In my view, this bylaw, though purporting to deal with density, clearly allowed the Developers to obtain additional uses by providing amenities to the municipality. Such a transaction is not permitted under the LGA (Local Government Act). The bylaw is therefore illegal."

Michael Vaughan, a municipal lawyer with Owen Bird who is not involved in the case, read the judgment and explained that the court was essentially reaffirming that selling zoning is illegal.

Municipalities can bargain for amenities if they are increasing the density of a piece of land but they cannot use amenities as bargaining tools if they are changing the land use itself.

"(The court) simply slapped Whistler on the knuckles for pushing the envelope and essentially trying to do indirectly what they couldn’t do directly," he said.

"It’s a warning light for municipalities that get heavily involved in developer negotiations that there are limits."

Lambert said that provision in the Local Government Act, which prevents amenity trading in exchange for land use, makes perfectly good sense to protect homeowners like himself.

"This is far from a technicality," he said.

"The legislation was designed to prevent exactly what’s happened here.

"I’m looking for some protection for my investment that I’m not going to wake up and find a hotel or a Wal-Mart or a Sears has opened up because they’ve come in and paid for these developments."

The Lamberts have a sizable investment to protect.

Their $10-million home lies on the north shores of Nita Lake. It’s south facing windows look directly across the small lake to the site of the hotel development.

The Lamberts doubted the project would move ahead due to the size and scale that was proposed by the developers.

They maintained that council only approved the project because of the enticements.

"This has always been the fundamental part of our case, that zoning has been bought and sold here," he said.

"The judgment of council could easily be fettered by these community benefits or inducements and that’s what the legislation seeks to protect.

"I’ve never wanted to stand in the way of progress but I’ve never wanted to sit by here and allow this to go on when in fact we believed it to be illegal and unlawful."

Bylaw 1650 was the municipality’s second crack at the Nita Lake development zoning.

After the original bylaw, which included a $1 million donation to health care in Whistler, was made public the Lambert’s wrote to the RMOW advising them the bylaw was illegal.

Under legal advice the municipality rewrote the bylaw.

The second bylaw erased the medical donation but still included other amenities.

"We complained about the first bylaw that preceded this one and had said that really what you’re doing is selling land use," said George Macintosh, the lawyer representing the Lambert’s.

"They went back to the drawing board and came up with this new version where they thought they’d got around that but the judge said they hadn’t."

Only five members of council could vote on the project because Mayor Hugh O’Reilly and Councillor Gordon McKeever were in conflicts of interest.

Council voted 4 to 1 in favour of the project last fall, with Councillor Ken Melamed opposing the project for a number of reasons.

"I did make this argument during the process at one of... my many speeches against this thing that by the community’s request for the $1 million (donation) to health care, the $5 million for the wetlands, the X amount for the employee housing… we arguably drove that hotel up to a height that pissed off Lambert enough to take us to court," Melamed said.

That scenario gives pause for thought, added Melamed, on whether the developer asked for the increased density first or the municipality asked for the amenities.

"Which came first," he pondered.

Other councillors did not want to comment.

Judge Humphries ruled a 30-day stay on the judgment, which means it will not come into effect until the middle of April.

"We thought that legally our position was correct from the beginning but it’s always pleasing, to say the least, when the judge actually gets to that conclusion," said Macintosh.

"When you take on city hall in a way you are (the underdogs) but at the same time my client is sophisticated and had this thing analyzed."