Given two opportunities, and given the significance of the project, one would think the municipality and its lawyers could draft a legal bylaw for the Nita Lake Lodge. This week we learned that, in the opinion of Madam Justice Humphries, they did not.
The case, if anyone has forgotten, was brought by Keith and Rosalyn Lambert against the municipality and the Nita Lake Lodge Corporation. The Lamberts claimed that the municipality sold zoning for the lodge in exchange for community amenities and that this is illegal.
On Monday Madam Justice Humphries’ ruling was released. She agreed with the Lamberts. In summary, she found that: "The (Local Government Act) permits bargaining for density; it does not permit bargaining for land use."
"This is not a situation where the Developers can build a hotel, and will be allowed to build a bigger one if they fulfill certain conditions," Madam Justice Humphries wrote. "This is a situation where they cannot build a hotel at all unless they provide Whistler with all the amenities listed…"
Perhaps it’s slightly unfair to accuse the municipality and its lawyers of incompetence, given that many municipalities have been interpreting the Local Government Act this way for years. But in the opinion of one expert in municipal law, lawyers and municipalities have been waiting for a test case like this for some time to clearly define where the line is drawn on amenities and zoning.
Unfortunately for Whistler taxpayers they came out on the short end of the test case.
This ruling doesn’t mean the Nita Lake Lodge is finished or that the amenities won’t come to Whistler. The municipality is free to appeal the decision. And municipalities are free to rezone land for new uses – they just can’t do it in exchange for amenities.
The question is, how much more are all parties willing to put up with. Going through the approval process a second time reportedly cost the Nita Lake Lodge Corporation an extra $100,000. Given the delays and costs incurred if a third attempt is made it’s not unreasonable to expect the developers will have to cut back somewhere, perhaps with the community amenities.
The proposed amenities included two resident employee housing developments, a 40-unit townhouse complex on the west side of Nita Lake and an 88-unit rental complex off Alta Lake Road, as well as cash for various community improvements and the preservation of 25 acres of wetlands. The Whistler Housing Authority was counting on the employee housing as the next significant contribution to the community’s pool of affordable housing.
The train station that was connected to the hotel development was also considered an amenity. Local businesses believe a proper train station is the first step toward developing a new tourist market. The provincial government, which was expected to announce in the next week a deal for a private passenger rail company to operate on the BC Rail line, was also anticipating the train station development. In fact the train station is an important part of the Olympic transportation strategy.
Keith Lambert said when the first Nita Lake Lodge bylaw was scrapped and the developers’ $1 million donation to the local health care system was axed that he wasn’t trying to deprive the community of amenities. The hotel, in particular its size, was the issue.
But the only legal means of challenging the hotel was on the matter of exchanging zoning for amenities. Mr. Lambert has won another round. Taxpayers, the community and the developers have lost again. They deserved better.