A B.C. Supreme Court ruling handed down Tuesday (Jan. 31) has Whistler Aggregates owner Frank Silveri looking to move ahead with plans to replace his old asphalt plan with a new modern facility.
Madam Justice Deborah Kloegman ruled that there are no grounds for the courts to grant the Resort Municipality of Whistler a permanent injunction to force Whistler Aggregates out of its location near the new employee housing neighbourhood at Cheakamus Crossing.
The Alpine Paving Ltd. asphalt plant operated by Whistler Aggregates was a source of conflict even before residents moved into their homes. Residents have complained about noise, odour and poor air quality.
"There is nothing in the Bylaw that restricts the manufacturing to use (the) raw materials extracted from the site," Kloegman wrote in her judgment.
The RMOW had argued in part that asphalt could only be manufactured with aggregates from the site; and since no aggregate was available at Cheakamus, Silveri's operation violated the letter of the bylaw.
"As I have found no basis for the statutory injunction, there is no need to consider the suitability of a trial on the equities of enforcement," Kloegman concluded.
Kloegman went on to comment on the materials provided by both sides that were the result of conflicting legal opinions and she made note in her judgement of the RMOW flip-flop after Silveri applied for rezoning of the property.
"What is determinative, in my opinion, is that the plain and clear wording of the bylaw encompasses manufacture of asphalt as a permitted use, and on a balance of probabilities such use is consistent with the scheme, object and intention of the bylaw."
Mayor Nancy Wilhelm-Morden said she couldn't comment on the ruling.
"We will be seeking legal advice and we will be reviewing all of our options, and that is all I can really say," she said.
Last August, before being elected mayor, Wilhelm-Morden said in an editorial column: "There is a way out for Mr. Silveri, of course — move the plant."
Questions on how much the legal challenge cost the RMOW and whether an appeal of the decision will be launched remained unanswered at press deadline.
The injunction was put in place last April when the previous council told Whistler Agregates it must cease operations. This followed months of public debate on the issue, and was partly informed by legal opinions that backed the position that asphalt production was not covered by the zoning. Council at the time also said it would only purchase asphalt from Silveri's Squamish plant.
"It was the right thing," Silveri said on Wednesday after he had a chance to review the court decision.
"The muni put me in that zoning," he said. "I paid at the beginning to get rezoned properly and that is where they put me. I was astonished that someone would all of a sudden turn around and say, 'Get out.' If you made a mistake well then live up to it."