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."
Silveri said he plans to put what he calls a state of the art asphalt plant at the sight in the spring. He said the $2 million plant produces 5 to 10 parts per million (ppm) of particulate compared to the 30 to 50 ppm produced by the old plant and a provincial standard of a maximum of 120 ppm.
The plant is computerized and Silveri said there are a number of them operating in Vancouver close to homes and he noted there is one in New Westminster operating near a hospital.
"In the middle of summer you won't even know it is running," Silveri predicted.
Cheakamus Crossing resident Tim Koshul, who has been a vocal opponent of the asphalt plant, said he felt like he was punched in the gut when he learned of the latest court decision.
"Who would ever imagine that such a beautiful neighbourhood would have to be exposed to heavy industry beside it?" Koshul asked.
He said he planned to discuss with his wife whether their home will go up for sale.
"I have a child coming in six weeks and I don't think I'm going to win 'Dad of the Year' if I expose my child to the dust and the toxins and those kinds of things," Koshul said.
"I look forward to seeing what the new mayor and council do," he added. "They certainly all ran on a campaign that we need to fix the problem that the previous regime created and they will be held to task on that. We have to find a solution. These two things shouldn't mix, especially in this town."
On the Cheakamus Crossing Facebook page, Koshul and at least four other residents indicated they intended to appeal their recent B.C. Assessment property value notices. Tuesday was the deadline to appeal.
Any successful appeals based on the court decision allowing the asphalt plant to continue operating could potentially lead to reduced property tax payments for Cheakamus Crossing residents.
Others, however, suggested that a wait-and-see approach be taken as council considers what to do.
The ruling comes after hearings Nov. 21 and 22 at B.C. Supreme Court.
Despite the injunction Whistler Aggregates continued operations at the plant, which was kept busy last summer with contracts that included paving at Rainbow and on the Duffey Lake Road.
Whistler Council then instructed the municipality's solicitors to serve the plant operators with court documents to get the enforcement of the zoning bylaw before the Supreme Court.
RMOW lawyers argued unsuccessfully for a declaration that the asphalt production use contravenes the zoning bylaw and that the plant should be shut down.
Whistler Aggregates has long operated the asphalt plant in the south end of town. But up until six years ago its neighbours were the town's landfill and the wastewater treatment plant. Then the community decided to build the 2010 athletes' village on the site once the landfill was decommissioned, which became resident housing for roughly 1,200 Whistler residents post-Games.
Affidavits filed with the B.C. Supreme Court as part of the legal action show that the asphalt plant was a concern for the Whistler Development Corporation (WDC), which built the Cheakamus Crossing neighbourhood, as early as 2007.
One of the affidavits, filed in court by Silveri, details a series of meetings in which WDC board members expressed concern about locating the Cheakamus Crossing neighbourhood close to where an asphalt plant was operating.
Pat Kelly, President of the Whistler Real Estate Company, said the existence of the asphalt plant is considered in the valuation of the market value properties in the neighbourhood.
"All of a sudden I don't think Cheakamus Crossing has a big black X over it because of a Supreme Court decision," said Kelly.
Recent figures show that the remaining debt on the development is about $8.5 million to the Municipal Finance Authority (MFA), down from the $100 million the municipality initially borrowed to finance the $161 million athletes' village construction.
The WDC owes a further $15 million to municipal reserves, which it plans to pay off after retiring the MFA loan by bringing on new market lots and multi-family developments at Cheakamus.
Eight units remain at the 20-unit Riverbend development. There are also seven of the nine market lots for sale at Madeley Place.
The judge's written decision is available online: http://www.whistler.ca/sites/default/files/judge_kloegman_rmow__v__whistler_aggregates_01-31.pdf
-with files from Alison Taylor