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Neighbour still questions legality of Nita Lake project



Ball in municipality’s court, Lambert says

The municipality is facing the threat of a fresh legal challenge as council moves to adopt bylaws for the Nita Lake Lodge development in the coming weeks.

Whistler resident Keith Lambert, who contested the Creekside development earlier this summer, has written another letter to the municipality highlighting what he says are serious legal concerns with the project.

"We’ve stopped short at this stage of filing a writ so none has been issued," said Lambert.

"The reason for that is to allow some time for discussion between the developer and the municipality. But obviously we have very serious concerns and we’re going to keep at it."

Lambert still questions the process of rezoning land in exchange for community amenities. He recognizes that there is a provision in the Local Government Act, which allows for bonus zoning but it includes rules and parameters that the government must work within. He maintains that the municipality has strayed beyond those parameters.

"We’ve pointed out a number of deficiencies in what they’re doing, with solid case law to support it, and essentially the ball is now back in the municipality’s court to come back to us and figure out what they’re going to do," he said.

Municipal staff could not comment on Lambert’s latest letter because there may be a legal challenge.

As it stands the Nita Lake Lodge project will bring an 80-room "boutique" lodge and train station to a three-acre parcel of land at the end of Lake Placid Road.

The land is currently not zoned for that kind of mixed-use development, but council has given rezoning bylaws three readings.

Lambert said the municipality cannot accept benefits as part of a rezoning package because there isn’t enough original zoning on that land.

"The law says that for you to accept amenities you must have sufficient base zoning in the first place to allow for all the elements of the proposed development, and that’s what case law supports."

Part of the development package includes of list of community amenities, chief among them two sites of employee housing and the preservation of 25 acres of sensitive wetlands.

Lambert further argues that the wetlands should not legally be part of this deal because they are not close to the parcel under development.

"The wetlands are closer to Function Junction than they are to the hotel," said Lambert.

"The amenities have to be for the benefit of the surrounds of the property.

"There has to be a connection and that makes sense because the people who are disadvantaged have to have an offsetting advantage. And that’s essentially what we’ve been able to unearth in our search of the law on this."

Lambert owns a house on the north side of Nita Lake. He first threatened to file a lawsuit at the end of April when council was on the verge of approving the Nita Lake Lodge development.

At that time Lambert maintained that any community benefits that came with a land deal must be directly related to the development itself.

The municipality responded by removing a $1 million donation to Whistler’s health care system that was part of the original deal. Additional employee housing was substituted for the donation when revised bylaws were presented.

Lambert said losing the money for health care was never his intention when he threatened legal action in the spring. He only wanted the size of the hotel on the south shores of Nita Lake to be scaled back.

Other community members, particularly some Creekside neighbours agreed.

When council moved ahead with the revised project, opponents met with Lambert to discuss their next step. At one point they even considered pursuing a class action lawsuit against the municipality.

"There’s a large number of people who object to this hotel and they’ve all encouraged me that if there is a further legal angle, they would like us to pursue that," he said.

Council voted 4-1 at the end of July to move the project forward. The bylaws are scheduled to come up for adoption at the Sept. 15 council meeting.

Lambert said he would wait for a response from the municipality before deciding his next move.

He said: "We can’t really determine what our next steps are until we hear what they’re going to do."