We might have anticipated some degree of favourable spin from the RMOW and developer on their side of the story of what went wrong in the Nita Lake legal case. But, I think they are being disingenuous and misleading in trying to persuade us their loss was merely due to a technicality over an error in base density and that council did nothing wrong in processing this development application.
The judge concluded the Nita Lake case was a matter of public importance. If the bylaw could have been struck down due to a mix up on base density, that judgment could have been very simply rendered. But that is not what happened. The judge, of course, noted this defect but, then went on to reach a landmark decision by ruling that land use had been sold in return for community amenities. She said: "In my view, this bylaw, though purporting to deal with density, clearly allows the Developers to obtain additional uses by providing amenities to the municipality. Such a transaction is not permitted by the LGA. The bylaw is therefore illegal." The judge also stated that a municipality "must act within the scope of the empowering legislation" clearly inferring it had not.
The reason the RMOW and developer ran into this problem is because the three acre site on Nita Lake was (and still is) zoned residential. To change the land use to allow a hotel and train station was going to be impossible without selling land use zoning given the previous failed attempt at introducing Bylaw 1627. That is because they had no other way but to sell land use zoning to make the development work and receive the community benefits. That is what the LGA seeks to prevent.
I believe the judgment is far from a technicality. It draws an important line in the sand by allowing a municipality to bargain with developers for density increases but not land use change. Land use is too valuable to be sold.
This is an important principle if we are going to preserve our precious Whistler environment. Permitting local governments to "sell land use" enables elected officials to abdicate their responsibility in making proper land use decisions, and prevents them from approaching land use issues with open and unfettered minds. Otherwise anyone can "buy" any land use, no matter the impact on our environment.
In addition, as part of the explanation of what went wrong, we are now being told the cost of the amenities is not $20 million, but only $2 million. The figure of $20 million was the amount the developer admitted as the costs in court proceedings. The developer has now suggested a new, substantially lesser, amount in the court of public opinion. Can anyone seriously buy 25 acres of land and construct so much employee housing in Whistler for only $2 million? I advocate much more transparency in future public hearings about the proper cost of community amenities related to development approvals.