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Nita Lake bylaw did not allow for a hotel

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Judge’s ruling might have been different with 50 extra square metres

Round one in the battle of the Nita Lake Lodge may have gone to its main opponent, Keith Lambert, but the war is far from over, according to one legal opinion.

Michael Vaughan, a municipal lawyer with Owen Bird, who is not connected to the controversial lawsuit, reiterated this week that the municipality has the authority to put a hotel at the south side of Nita Lake.

But unlike the Nita Lake Lodge bylaw, which was quashed by the B.C. Supreme Court last month, the hotel development must abide by the Local Government Act.

"Whistler isn’t really at a disadvantage here in terms of trying to permit this development to go ahead," said Vaughan, who has reviewed the B.C. Supreme Court judgment, which came down on March 15.

"Their disadvantage is that they have to structure the bylaw in stricter accordance with the (Local Government) Act. So they can still do what they wanted to do, they simply can’t do it the way they did it."

Last October council approved a zoning bylaw that created the CC3 zone in the Nita Lake Lodge development.

In the zone, the municipality set a maximum hotel size of 100 square metres (or just over 1,000 square feet) for the piece of land on the south shores of Nita Lake.

The bylaw then went on to increase the density on that site for the Nita Lake Lodge to more than 5,000 square metres if the developer provided certain amenities.

Those amenities included protecting 25 acres of sensitive wetlands, 120 units (or 330 beds) of employee housing and several cash donations for things like public trail enhancement, fish habitat and public art.

Madam Justice Humphries, who ruled on the case, said the developer could never conceivably build a hotel at 100 square metres.

By increasing the density to 5,000 square metres to allow the hotel, the municipality was in fact changing the basic land use of the Nita Lake site while getting amenities.

This is illegal under the Local Government Act.

To some, who are following the case closely, this appears to be a mere technicality.

"Somehow a mistake was made," said retired lawyer and former Whistler councillor Garry Watson, who dealt specifically with municipal law when he was general counsel for the B.C. Place negotiations in Vancouver.

"In other words, (the Lamberts’) concern was their view and they searched for every possible way to invalidate the bylaw, all the technical issues and there were other technical issues raised as well."

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