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Tim Koshul to speak with lawyers on asphalt issue this week

Spokesman for No Asphalt Plant examining options for lawsuit



The mayor said, "sue us," and in a way his opponent is obliging him.

Tim Koshul, spokesman for the No Asphalt Plant group that wants a plant operated by Alpine Paving moved away from the Cheakamus Crossing neighbourhood, told Pique on Thursday that he'll be meeting with lawyers from West Coast Environmental Law this week to investigate the possibility of bringing a lawsuit that would determine outright whether the plant is legal in its current location.

"Ken said sue us, I didn't say I was going to sue," said Koshul. "I guess that's what people do when politicians don't do their jobs."

What he'll sue for isn't clear yet. Pique asked whether he might bring a nuisance lawsuit against Alpine Paving because the municipality has thus far received 86 complaints relating to the plant.

Koshul said that was a possibility but he didn't confirm that's what he'd be suing for.

"I got the list of all the complaints and there's 86 of them," he said. "(Alpine Paving owner Frank Silveri's) license of occupation says he won't be a nuisance or annoyance to anyone in the vicinity. Eighty-six complaints say that you are."

Mayor Ken Melamed said "sue us" at a March 1 council meeting, when Koshul asked council various questions about the legality of the plant operating in its current location.

The area is zoned IP1, which permits activities such as manufacturing and processing of gravel and aggregate, as well as storage of related supplies. There is no specification in the zoning that allows asphalt to be processed there.

Melamed responded at the meeting that the question of legality has been asked and answered, and that no "immediate next action" is required of the RMOW because Alpine Paving has committed to bringing in a new, $2 million asphalt plant that will have lower emissions than the current one.

Koshul later asked where the zoning is on the plant, and why he has to live beside it in his home on Mount Fee Road.

Melamed responded, "the legality of the use is established until challenged in court."

"We'll see you in court then," Koshul said.

Koshul later went for a second round of questioning, asking why, if the municipality was not concerned about any legal action by Alpine Paving if it were ordered to move its plant, the RMOW committed up to $350,000 to the company as part of a relocation agreement to purchase a baghouse and other upgrades so that it could comply with a new air quality bylaw.

As part of that agreement, Alpine Paving said it would not sue the municipality for anything to do with relocating the plant.

"If just on the thought, that somehow you had it in your head that he was going to sue you, the taxpayer's wallet's open to the tune of possibly $400,000, just the thought of me maybe taking legal action, where do I pick up my cheque?" Koshul asked. "I don't understand that."

Melamed said it "doesn't work that way."

"It almost worked that way," Koshul said.

The mayor then responded, "You want to find out? Sue us."

Speaking via e-mail, Melamed said he was tired of hearing Koshul's threat to sue.

"The final straw was his accusation that we paid off Whistler Aggregates," he said. "This is the type of behaviour we were trying to curtail when we asked for greater respect at the (Question and Answer period.)"

This isn't the first time that Melamed has instructed members of the No Asphalt Plant group to take their own initiative to find out information about the plant's legality in its current location. He implored members to get their own legal opinion regarding the plant and they did, obtaining one from lawyer Andrew Gage at West Coast Environmental Law.

That legal opinion found that the asphalt plant does not comply with the current zoning bylaw; that it does not have any legal right to operate at its present location; and that Whistler could take steps to enforce its zoning bylaw.

Don Lidstone, a lawyer for the municipality, agreed with all these findings but said in a letter that Gage did not have access to the "additional, confidential background information that has informed our previous opinions to the RMOW."

"It is our opinion that this information must remain confidential to protect the legal and financial best interests of the RMOW and all of its residents, and to maintain the RMOW's governance best practices," he wrote.