The Resort Municipality of Whistler has long maintained that asphalt processing is legal in an IP1 zone, but not one of its five legal opinions says this definitively.
The municipality filed five legal opinions in B.C. Supreme Court as part of an action that could determine whether Alpine Paving (1978) Ltd. is illegally operating an asphalt plant in an Industrial Processing (IP1) zone.
The opinions, some of which contain significant redactions, have since been posted on a website belonging to Dave Buzzard, a council candidate and one of a number of people working to see the plant moved away from Cheakamus Crossing.
The municipality has maintained since June 2010, after receiving a legal opinion from law firm Lidstone and Company, that asphalt processing is legal in an industrial processing zone. Then-CAO Bill Barratt affirmed this in a meeting with local media that same month. Mayor Ken Melamed later said, at a September 21, 2010 council meeting, that staff interpreted asphalt as a legal use in an IP1 zone.
"No matter how much everyone would like to believe that the site was not zoned, we and our solicitors do not share that view and believe the courts would have the same opinion," Barratt said at the meeting with media.
Barratt said in a Tuesday interview that he was only relying on a legal opinion from 1994, which told the municipality that if it wanted to make asphalt legal in an IP1 zone, then it should be expressly included.
"What I was saying was that staff at the time, meaning staff at the time in 1994, not staff at that date, referring to any other legal opinions," he said. "The question was, how did it get to where it is, how did it get into that situation?
"All I was trying to get across was, in 1994, when all this went down, staff made a decision that they weren't going to exclude it within the zoning. If you look back at the bylaw, you know, there's amendments and updates and clarifications made to zoning all the time. I think back in the day zoning was more broad.
"When you look at what was going on in 1994, the zoning bylaws, they weren't as sophisticated as they are now, where they nail down every use in the zoning bylaw. That wasn't always done in the past."
Lidstone's opinion in 2010 stated as follows: "As all other uses are prohibited in the zone, and the manufacturing and production of asphalt is not explicitly included in the permitted uses in the IP1 zone, it is our opinion that the bylaw does not permit asphalt manufacturing and production in the IP1 zone.
"The zoning bylaw is by no means definitive on this, but we think the stronger conclusion is that asphalt manufacturing and processing plants are not clearly permitted in IP1 or any other existing zone in the RMOW."
The municipality was obtaining legal opinions around the asphalt plant as early as 1994. Back then it sought advice from law firm Lidstone, Young, Anderson, in which it asked whether asphalt processing could be considered a permitted use in a zone that permits "manufacturing and processing of gravel and aggregate."
Brian Buholzer of Lidstone, Young, Anderson advised the municipality that if it wants to be sure that asphalt processing is not permitted in an IP1 zone, then it should "expressly exclude asphalt processing from the list of permitted uses in the zone.
"If this is done, other similar uses that are also not desired, such as the manufacture of concrete, should also be expressly excluded," the opinion said.
The Lidstone opinion from 2010 is followed later that year by an August 11, 2010 opinion from Bull, Housser and Tupper LLP about the implications of entering into a "settlement agreement" that would see the asphalt plant relocated further away from Cheakamus Crossing.
The law firm said it is "not certain" that an asphalt plant can operate in an IP1 zone, but it also warned the municipality that it should "not assume, with any degree of certainty, that it would be able to obtain a declaration that an asphalt plant is not a permitted use in the IP-1 zone."
The opinion went on to state that, even if the municipality could obtain an injunction, a court would likely grant Alpine Paving "considerable time" to find a new location and relocate before the injunction would be effective.
The municipality again sought a legal opinion in March 2011 to decide whether the asphalt plant was a permitted use, this time soliciting advice from Valkyrie Law Group LLP. That firm's opinion advised there is a "reasonable argument" that asphalt is a permitted use in IP1, but warned that a court could easily conclude otherwise.
"The issue whether Alpine's asphalt plant falls within the permitted uses of the IP1 Zone is ambiguous at best, such that an injunction brought by the RMOW to have Alpine cease and/or relocate its operations may not be successful," the opinion concluded.
Finally, the municipality obtained another legal opinion from Lidstone, Young, Anderson on March 30, 2011, this time asking whether Alpine Paving's decision to replace its asphalt plant had any effect on its earlier legal opinions.
That opinion determined that its earlier legal opinions were not impacted by the plant's replacement, nor was the municipality's ability to enforce its zoning bylaw.
