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Nita Lake Lodge zoning ruled illegal

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Amenities may be exchanged for increased density but not for zoning that allows additional uses

Keith Lambert has been left with bittersweet emotions after a stunning legal decision against the town of Whistler and the Nita Lake Lodge Corporation.

"I’m pleased that a decision has been rendered," said the part-time Whistler homeowner from Australia on Tuesday.

"But I am disappointed that we had to resort to the courts. This should have been resolved with the developer or with the municipality or with both, and there were plenty of opportunities to do that, I felt."

Lambert, along with his wife Rosalyn, launched a lawsuit against the municipality in October days after Whistler council gave its final approval for the Nita Lake Lodge development.

The complex development, which was years in the making, included a four-storey, 80-room lodge and a train station on the shores on Nita Lake in Creekside, along with 14 single-family homes on a large tract of nearby land.

The deal involved three separate pieces of land as well as a sizeable chunk of employee housing, 25 acres of protected wetland and a host of additional amenities.

All of these amenities were the crux of the Lambert’s argument that came before Madam Justice Humphries in a three day hearing in February.

Humphries agreed with the Lamberts, essentially confirming that the municipality had sold zoning for amenities under the Nita Lake Lodge bylaw.

She explained why she found development bylaw 1650 illegal in a 24-page judgment, which was e-mailed to the lawyers on Monday afternoon.

"In order to be allowed to build a hotel, the Developers have to provide all the amenities listed..." wrote Humphries.

"This is not a situation where the Developers can build a hotel, and will be allowed to build a bigger one if they fulfil certain obligations. This is a situation where they cannot build a hotel at all unless they provide Whistler will all of the amenities listed...

"In my view, this bylaw, though purporting to deal with density, clearly allowed the Developers to obtain additional uses by providing amenities to the municipality. Such a transaction is not permitted under the LGA (Local Government Act). The bylaw is therefore illegal."

Michael Vaughan, a municipal lawyer with Owen Bird who is not involved in the case, read the judgment and explained that the court was essentially reaffirming that selling zoning is illegal.

Municipalities can bargain for amenities if they are increasing the density of a piece of land but they cannot use amenities as bargaining tools if they are changing the land use itself.

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