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No legal consensus on what is permitted in IP1 zone

Legal opinions offer varying perspectives on asphalt plant's legality

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The Resort Municipality of Whistler has long maintained that asphalt processing is legal in an IP1 zone, but not one of its five legal opinions says this definitively.

The municipality filed five legal opinions in B.C. Supreme Court as part of an action that could determine whether Alpine Paving (1978) Ltd. is illegally operating an asphalt plant in an Industrial Processing (IP1) zone.

The opinions, some of which contain significant redactions, have since been posted on a website belonging to Dave Buzzard, a council candidate and one of a number of people working to see the plant moved away from Cheakamus Crossing.

The municipality has maintained since June 2010, after receiving a legal opinion from law firm Lidstone and Company, that asphalt processing is legal in an industrial processing zone. Then-CAO Bill Barratt affirmed this in a meeting with local media that same month. Mayor Ken Melamed later said, at a September 21, 2010 council meeting, that staff interpreted asphalt as a legal use in an IP1 zone.

"No matter how much everyone would like to believe that the site was not zoned, we and our solicitors do not share that view and believe the courts would have the same opinion," Barratt said at the meeting with media.

Barratt said in a Tuesday interview that he was only relying on a legal opinion from 1994, which told the municipality that if it wanted to make asphalt legal in an IP1 zone, then it should be expressly included.

"What I was saying was that staff at the time, meaning staff at the time in 1994, not staff at that date, referring to any other legal opinions," he said. "The question was, how did it get to where it is, how did it get into that situation?

"All I was trying to get across was, in 1994, when all this went down, staff made a decision that they weren't going to exclude it within the zoning. If you look back at the bylaw, you know, there's amendments and updates and clarifications made to zoning all the time. I think back in the day zoning was more broad.

"When you look at what was going on in 1994, the zoning bylaws, they weren't as sophisticated as they are now, where they nail down every use in the zoning bylaw. That wasn't always done in the past."

Lidstone's opinion in 2010 stated as follows: "As all other uses are prohibited in the zone, and the manufacturing and production of asphalt is not explicitly included in the permitted uses in the IP1 zone, it is our opinion that the bylaw does not permit asphalt manufacturing and production in the IP1 zone.

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