A show-cause hearing at the June 19 council meeting in relation to a home with illegal spaces ended before council could make a decision after a Resort Municipality of Whistler (RMOW) lawyer stepped in.
"I think before you enter into deliberations, we do have some legal advice that we need to share with you," said municipal clerk Brooke Browning. "So I think what would be most appropriate at this time is to conclude the hearing and defer the decision."
The hearing was in regards to a home on Gondola Way in Creekside, which the RMOW was aiming to hit with a note against title that building regulations have been contravened.
By doing so, the RMOW would impede the homeowner's ability to obtain a mortgage or insurance on the property.
In late 2016, the home was found to contain 3,000 square feet of extra basement space not included in the approved building plans.
The extra space was located behind a hidden access panel.
A Stop Work Order was placed on the site, and in April 2017, the RMOW hit the contractor, DCC Construction, with a six-week business-license suspension.
At the June 19 hearing, lawyer Mark Sager argued that the homeowner (Scott Ferguson, a resident of Scotland) was acting in compliance with the relevant local bylaws at the time a permit was applied for.
"You actually changed your bylaws in 2017, and so today it wouldn't be in compliance, but in 2015, it was in compliance, and it has been built in accordance with the BC Building Code," Sager said.
"So here's the issue: There was a longstanding acknowledgement and an ambiguity in the municipality's zoning bylaws about these basements ... There was a lot of work done in June of 2016 to address this issue, but at the time, when (Ferguson) went to apply for his building permit, he was told unequivocally that a basement under a basement was allowed."
But by the time building plans were submitted, the RMOW had changed the rules around gross floor area (GFA) exclusion in an attempt to rein in the increasing size of new builds.
The rule change meant that only the portions of a basement that are below ground, or in ground, qualify for exclusion from the total GFA.
The building plans were rejected in March 2016. New plans were submitted in June of that year, which did not include the basement-below-a-basement. They were approved.
"So here's the mistake: He gets this advice, the hole is dug out to build his basement under a basement, he submits his building plans, and he's told, 'No, you can't do it,'" Sager said.
"Should he have stopped right then? Absolutely. Can't disagree. Should have stopped, should have appealed. But it's now too late; the hole is dug."
But some RMOW councillors questioned the intent of the homeowner.
"After (the plans) weren't approved, wouldn't that have shown that it wasn't permitted?" Councillor Sue Maxwell asked.
"I've gone over this with him a million times, unfortunately—I guess he didn't get the best advice," Sager replied.
"His contractor—through something that occurred here some time ago—had his business licence removed, and does (Ferguson) wish he had been here through the building process? You bet he does. His advice was, 'Carry on.'"
In 2016, Ferguson hired GHL consultants to come up with a solution for the unique, sloping site.
The firm recommended that he install a sprinkler system in the house as an added level of safety to bring it into compliance with the code.
"In conclusion, the home is safe, (and) it was built in compliance with the zoning bylaw as it was interpreted at the time," Sager said.
"Mr. Ferguson would very much like to not have this problem ... At the very least, he should be given plenty of time to rectify the problem."
A decision will be made at a future council meeting.