The asphalt plant isn't legal at its current site. And it wouldn't have been permitted at a new site where the municipality planned to put it as part of an agreement with Alpine Paving.
That's according to a document obtained this month under a Freedom of Information request by Tim Koshul, spokesman for the No Asphalt Plant group that's trying to get the plant moved away from the Cheakamus Crossing neighbourhood.
Earlier this month, Koshul requested access to records relating to remarks made by planning analyst Kevin Creery at a council meeting on November 17, 2009. At that meeting, Creery stated that Alpine Paving, the operator of the asphalt plant, was told it needed a rezoning for a new property where it planned to move its facility about 150 metres away.
The municipality reached an agreement with Alpine Paving to move the plant away from Cheakamus Crossing in May of 2010. The agreement committed the municipality to rezone the new property from RR1 to IP1 zoning to allow processing of asphalt - which is not a permitted use under the zoning, but would have required an amendment to make it happen.
Koshul specifically requested the rezoning application that Alpine Paving made to get the new property changed from RR1 to IP1 with an allowance for asphalt processing. And according to the application, Alpine Paving only applied for the zoning to allow gravel extraction, not asphalt processing.
That means the municipality came to an agreement whereby it would move the asphalt plant to a site under zoning that didn't allow it.
For Koshul's part, he wasn't surprised that the applicant never actually tried to get asphalt processing included in the IP1 zoning.
"It doesn't surprise me after all this stuff we've uncovered in a year and a half," he said. "The impression is it's run like the Wild West. (Alpine Paving owner) Frank Silveri hasn't had to do anything that other people have had to do."
In seeking clarification around the issue Pique asked: "Why was the Resort Municipality of Whistler considering a rezoning from RR1 to IP1 at the new site for the asphalt plant when, according to this Freedom of Information request, the applicant never requested a rezoning that would allow asphalt processing?"
The following was the municipality's email response: "In discussion with the applicant to move the asphalt plant away from Cheakamus Crossing neighbourhood, the new proposed location had to be rezoned from RR1 to IP1."
The situation is not black and white according to municipal documents. While it is true that a municipal lawyer has agreed with statements by NAP that the asphalt plant does not comply with current zoning it has also stated that additional confidential information means the statement is not a definitive one.
In a later email for this story the RMOW said: "The asphalt plant is located in IP1 zone. The IP1 zone does not include 'asphalt plant' as a specified use; however it was the interpretation of RMOW staff that this use is allowable.
"In 1994 the RMOW sought a legal opinion about the uses permitted within the IP1 zone, specifically related to the asphalt plant. The response was not definitive: i.e. the legal opinion did not clearly state asphalt plant was not a permitted use.
"In fact, the opinion stated that 'if the resort municipality wants to be certain that asphalt processing is not permitted in the proposed zone, it should expressly exclude asphalt processing from the list of permitted uses in the zone.'
"The IP1 zone was not amended to exclude the specific language prohibiting asphalt production, and therefore asphalt production was determined to be a permitted use.
"Not only was this use supported by staff and Council of the day, but a future zone, IP2, was created (north of Emerald) that specifically prohibited other uses by including the statements recommended by our solicitors: 'manufacturing and processing of gravel and aggregate using only materials mined on the parcel.' In other words an operator would be in contravention of the zoning by bringing materials on to the site that produced a product such as asphalt or concrete."
Ralph Forsyth, a member of Whistler council who doesn't support the asphalt plant operating near Cheakamus Crossing, said councillors did see the application that Alpine Paving made to rezone the new property but didn't know that the company never applied for an amendment that would allow asphalt production.
"You've caught me unawares," he said.