I’m back on the asphalt beat and this week was a fascinating one as the No Asphalt Plant (NAP) group, which is working to move a plant away from its site close to Cheakamus Crossing, an employee housing neighbourhood, obtained documents through a Freedom of Information request that show a “Relocation Agreement” that has repeatedly been referred to as a “legal settlement” by the Resort Municipality of Whistler.
A key piece of the story is a back-and-forth between the mayor and his critics at Tuesday night’s council meeting. It’s in about the middle of the story and is, in my opinion, the most interesting part.
Community Charter states local government cannot give assistance to private businesses
By Jesse Ferreras, Pique Newsmagazine
February 17, 2011
The Resort Municipality of Whistler committed to providing the operators of an asphalt plant up to $350,000 for upgrades to help it comply with an emissions bylaw – a move that critics are calling a violation of the Community Charter.
In a Relocation Agreement obtained under a Freedom of Information request by Whistler resident Judy Bonn, the RMOW commits to providing plant owner Alpine Paving (1978) Ltd. with “one half of the capital costs (not exceeding $350,000 as Whistler’s contribution)” of installing a Baghouse and other components to help it comply with emission standards to be adopted under a new air quality bylaw.
In a May 31, 2010 document detailing Frequently Asked Questions about the asphalt plant, the municipality states that Alpine Paving will spend between $1 million and $1.2 million to relocate the plant, and that the RMOW would make a financial contribution to the project.
The document goes on to say that the agreement was established to settle a “legal dispute, the results of which must remain privileged as a condition of the settlement, but the municipal solicitor has confirmed there is no unlawful assistance to business so the transaction is valid.”
The document characterizes the “financial contribution” as legal costs. But the Relocation Agreement states the RMOW’s contribution amounts to “capital costs.”
The release of the agreement led to a heated exchange during Question and Answer Period at Tuesday night’s Whistler council meeting. Dave Buzzard, a resident of Emerald but an active critic of the municipality’s handling of the asphalt plant, was first to speak after Mayor Ken Melamed pointed out that Question and Answer Period was for information and not for debate.
Buzzard began pointing to Schedule E of the agreement, in which the parties agree not to bring legal claims against each other in relation to relocating the plant. Before he finished speaking, Melamed asked, “What’s the question?”
Buzzard then asked whether the RMOW was keeping secret a lawsuit that may have precipitated the agreement and thus required it to remain confidential.
Melamed responded that there was no lawsuit and that the RMOW struck an agreement to avoid future suits. Buzzard then asked, “Yes, but what was the actionable conduct on the part of the RMOW that would entail a $350,000 legal settlement?”
Melamed then said there was no actionable conduct, repeating that the agreement was meant to prevent any future legal action.
Tim Koshul, spokesman for the No Asphalt Plant (NAP) group that’s working to move the plant away from Cheakamus Crossing, was next to the microphone wearing a baseball cap. Before asking a question Melamed addressed him and said, “Mr. Koshul, would you mind just taking your hat off?”
Koshul agreed, and then added that he needed to get a haircut, drawing muted laughs from Councillor Eckhard Zeidler.
Koshul asked why Melamed said at a council meeting in May that an alleged $400,000 expense relating to the asphalt plant was for “legal costs.”
“Is there a point to the question?” the mayor responded. “What’s the community interest in this?”
As Melamed spoke his last word Koshul said, “Whether or not people were telling us the truth or not.”
“Are you accusing us of lying?” Melamed asked.
“I’m asking you, did you or did you not…”
“Mr. Koshul, this question and answer period is not for you to stand up here and accuse us of lying.”
“I’m asking a question, you said…”
“I think we have been very clear about what our intent was…”
“No you weren’t clear, sir, you were not clear at the council meeting, you said it was for legal costs. The question asked by the young lady was, are you spending money on upgrades for the plant, or for the relocation? You said no. This thing’s called a relocation agreement.”
Said Melamed: “I was advised to reference them as legal costs. And that’s why I used those terms, very specifically.”
Asked Koshul: “Why were you advised to call them legal costs versus relocation costs or upgrades?”
“Because the terms of the agreement were to be kept confidential, as per the agreement. In order to protect the interests of the Resort Municipality of Whistler, that includes the residents and members of the community, we were, you can appreciate that there is legal sensitivity when we are dealing with issues,” replied Melamed.
Speaking with Pique on Monday, Koshul said that he believed giving money to Alpine Paving to assist in upgrades to the plant amounts to a violation of the Community Charter, a provincial legislation that sets out the mandate and responsibilities of a local government.
Section 25 of the Charter states that a council cannot provide a “grant, benefit, advantage or other form of assistance to a business” unless it concerns a heritage property, nor can it be exempt from a tax or fee.
In the Relocation Agreement, the municipality commits to paying half the costs that Alpine Paving incurs to comply with the new air quality bylaw. It also commits to preparing a land survey of the Relocation Site “at its sole cost” and deliver it to the Integrated Land Management Bureau (ILMB) before May 31, 2010.
The municipality also committed in the Agreement to prepare a land survey of the Relocation Site. The $3,700 survey has been completed.
RMOW Administrator Bill Barratt denied in an interview that the agreement violates the Community Charter. He said the Relocation Agreement is a legal settlement and that costs relating to the baghouse and other components amount to “legal costs.”
“Legal costs could be legal fees, could be costs associated with a settlement, that’s why it was called legal costs,” he said. “No mystery.”
The agreement, however, is moot at this point since Council failed to move forward with the zoning for Alpine Paving in September.
But the agreement also isn’t labeled a settlement. When released to Bonn, Shannon Story, the RMOW’s head of Freedom of Information and Protection of Privacy, called it a “contract” and the agreement contains no signatures or stamps of approval from either a lawyer or a court registrar.
The agreement states that the parties have “mutual claims” but Barratt denied that Alpine Paving has ever brought a lawsuit against the municipality. He pointed to Schedule E of the agreement to support his claim that it was a legal settlement.
“It was a settlement agreement because it eliminated any future obligations of the municipality,” he said. “We couldn’t force Alpine Paving to relocate, we had to work cooperatively, so really the agreement, that was a result of us working with Alpine to come up with an upgrade and move the plant and make a financial contribution to the project.”
Obtaining the Relocation Agreement itself was a challenge for Whistler residents who filed Freedom of Information (FOI) requests to get it.
Bonn originally filed her application on July 4, 2010, requesting the “Agreement between Alpine Paving (owner) Frank Silveri and RMOW signed in May 2010 regarding the 150m relocation of the asphalt plant.” Koshul also filed a request for the agreement.
Both were initially denied their request. And according to Barratt, that’s because the agreement was subject to a zoning application and the zoning hadn’t yet come to council.
“That’s our legal advice, as advised by our lawyers, and they’re quite familiar with FOI,” he said. “I’m not an expert on the FOI.”
Zoning, however, isn’t a ground upon which to deny a Freedom of Information request. British Columbia’s Freedom of Information and Protection of Privacy Act allows public bodies various grounds upon which to refuse a request. Among other things, that includes drafts of resolutions and bylaws or the substance of an in camera meeting. It can also refuse to release information subject to solicitor-client privilege.
Shannon Story, head of the municipality’s Freedom of Information department, would not comment on Barratt’s reasoning but she said the request was initially denied for three reasons: 1) it revealed the substance of an in camera meeting; 2) it could harm the financial or economic interests of the local government; 3) it could be subject to solicitor-client privilege.
There is no “solicitor-client privilege” label on the agreement, which was released after Bonn appealed it to the provincial Office of the Information and Privacy Commissioner.
Story decided to release it when council rejected zoning for the asphalt plant’s new location and when she discovered that much of the information in the agreement was public already. She then informed the OIPC that she would release it.
“Circumstances had completely changed and I didn’t have to hold it back,” she said.