Cheakamus residents get their own legal opinion

What do you do when a legal opinion doesn’t go your way? Get your own!

That’s what some Whistler residents have done as part of their efforts to get an asphalt plant moved out of the community.

The story begins like this. With the Olympics coming, there was a need to house the athletes. Whistler did this by setting up an Athletes Village in the area near the Cheakamus River.

At the same time, Whistler was facing issues housing its workforce. People were working in Whistler for companies like Whistler Blackcomb, the municipality and others, and commuting every day from places like Squamish and Pemberton.

It wanted to house its workers within the community so it set up the Athletes Village to serve as subsidized housing once the Olympics were finished.

Dubbed Cheakamus Crossing, the neighbourhood would provide affordable and environmentally-sustainable housing for hundreds of people, effectively solving the housing crunch in Whistler.

Then, months before the Olympics, residents discovered there was a mobile asphalt plant operating nearby. It had been there since the mid-90’s and, though it had a business licence from the municipality, it was operating on a property that was never properly zoned for asphalt production.

Bob McPherson, the RMOW’s director of community life later admitted in a Pique story that he was the one to blame for the neighbourhood being located near an asphalt plant. He inspected the property in the winter and because the plant wasn’t operating at the time, he didn’t notice it was there. He added in the same story that he might have located the neighbourhood there anyway.

A vocal group of residents wanted it moved, and the RMOW came to an agreement with Alpine Paving Ltd., the plant’s operator, to move it 150 metres to behind a hill, out of sight of the neighbourhood. That wasn’t enough for the residents, who felt the plant didn’t have any right to operate in Whistler.

The RMOW then obtained a legal opinion from Vancouver municipal lawyer Don Lidstone, stating that IP1 zoning, which governs industrial processing, did imply allowance of asphalt production at its site in the Cheakamus area. That opinion, which has never been released to the public, forms the basis of Whistler’s reticence to move it out of the Cheakamus area.

No matter for the people who want it out of there. They went out and got their own legal opinion from West Coast Environmental Law (WCEL).

The opinion has a lot of information in it, but suffice it to say that it conflicts heavily with what the RMOW has apparently been told.

Among other things, West Coast Environmental Law’s legal opinion isn’t as confident in the implications of IP1 zoning as is the municipality. The latter claims that IP1 zoning implies that asphalt production is allowed, despite the wording of the bylaw:

3.1 The following uses are permitted and all others are prohibited:

(a) manufacturing and processing of gravel and aggregate; and

(b) storage of industrial machinery, equipment and supplies related to the manufacturing and processing of gravel and aggregate

“Gravel and aggregate” are apparently the terms that imply allowance of asphalt production. WCEL disagrees. Lawyer Andrew Gage writes in his opinion that, “the better view is that asphalt processing does not fall within the meaning of that phrase, and is not legally allowed within that zoning.”

He goes on to cite documents obtained by opponents of the asphalt plant that show a clear attempt by the owner of the property to have it zoned to allow asphalt processing. The owner abandoned the attempt after he felt the RMOW was asking for too many financial contributions from the developer. Pique’s own story about this is cited in the legal opinion and it can be found right here.

The question now is where the issue goes from here. A member of council dared the opponents of the asphalt plant to get their own legal opinion, and they did. Now the RMOW finds itself contending with a legal opinion that contradicts its own.

A public hearing into the rezoning of the asphalt plant’s new property happens in September. With their own opinion in tow, the Cheakamus residents opposing the plant are primed to make it a big battle in the court of public opinion.

(photos courtesy of LiveSmart BC; Pique Newsmagazine website)

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About jesseferreras

Sea to Sky-based journalist. Snowboarder, cyclist, cinephile, bon vivant.
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