Yesterday the Mayor and Council of the Resort Municipality of Whistler (RMOW) released a letter written by their lawyer, Don Lidstone, demanding that a controversial asphalt plant located next to the residential neighbourhood of Cheakamus Crossing cease its operations by May 13, 2011. This letter seems to put an end to a bizarre situation in which the Municipality had refused to enforce its own bylaws on the basis of “secret information” which it refused to share. West Coast Environmental Law was on the forefront of asserting that the RMOW could and should prevent the Asphalt Plant from operating illegally next to a residential neighbourhood. Iona Lake, one of the spokespeople for the opponents of the 
asphalt plant, said:
I am convinced that without the assistance of Andrew Gage and West Coast Environmental Law, we would have lost this case. The Asphalt plant would be operating forever on the new area site.
Kudos to the Municipality for doing the right thing.
The story to date
Asphalt plants, and the fumes they give off, don’t make good neighbours, and a new residential development at Cheakamus Crossing in Whistler, originally built as housing for Olympic athletes, is located almost next to an asphalt plant, owned by Alpine Paving, that has been operating there since the 1990s.
One might have some sympathy for the operators of the asphalt plant, who after all were there first, but it turns out that the property the plant is located on is (and has been since before the plant located there) zoned for gravel operations, not for an asphalt plant. Municipal staff told the operator as early as 1997 that the plant was illegal.
But despite the illegality, the RMOW didn’t feel that it could move the asphalt plant, claiming that (a) the an asphalt plant is “gravel processing” allowed by the zoning and that (b) the RMOW could not enforce the bylaw after allowing the plant to remain there so long. After the asphalt plant operator refused requests to move to more suitable locations, the RMOW cut a deal – if the operator would move a short distance (150 metres) away, the RMOW would rezone the land to allow it to operate. In addition, the RMOW proposed to enact a new air quality bylaw that would hold the asphalt plant to higher air quality standards.
This compromise did little to satisfy the new residents of Cheakamus Crossing, or many others in the community of Whistler, and West Coast received calls, emails and one visit from about a half-dozen people concerned about this proposal and questioning the claim that the RMOW could not enforce its own bylaws. One blogger summed up the community feeling:
The RMOW should be closing the plant full-stop, not rezoning the area to make it a permanent permitted use, beside a full-time neighbourhood filled with families and kids. The 33-acre proposed quarry expansion includes … significant tracts of old growth and mature forest, rare plant species and ecological communities and a wildlife connectivity corridor. … Even the RMOW's own Environmental Stewardship Manager recommended against the quarry expansion.
Council was giving local residents the impression that they had no choice – that the operations of the asphalt plant were legal and needed to be accommodated. They said that they had legal advice to this effect and challenged locals to get their own legal opinion. On August 17th, 2010 a slim majority of the Council gave first and second reading to a bylaw rezoning the new property to allow the asphalt plant to operate. I believed that Council might be making its decision on the basis of an incorrect understanding of the law, and at the request of local residents, I wrote a letter, dated August 25th, to Mayor and Council. In that letter I concluded that:
- the current zoning did not allow for the operation of an asphalt plant; and
- the asphalt plant was not “grandfathered” and could not continue to operate legally.
The letter added to the growing public controversy over the RMOW’s “secret legal opinions”, and the Whistler Question trumpeted my conclusion that the asphalt plant had ‘No legal right’ to operate.
Don Lidstone, counsel for the RMOW (and a very accomplished municipal law lawyer), reviewed my opinion and wrote his own letter in reply. To their credit the Mayor and Council (at Mr. Lidstone’s recommendation) released that letter. Mr. Lidstone wrote:
We agree with much of what is stated in the WCEL letter, including:
- The asphalt plant does not comply with the current zoning bylaw;
- The asphalt plant is not grandparented, nor does it have any legal right to operate at its present location; and
- (subject to additional factual background information) Whistler could take steps to enforce its zoning bylaw.
Mr. Lidstone does not explain what the “additional factual background information” is, instead stating:
… WCEL does not have access to the additional, confidential background information that has informed our previous opinions to the RMOW on this issue. It is our opinion that this information must remain confidential to protect the legal and financial best interest of the RMOW and all of its residents, and to maintain the RMOW’s governance best practices.
Opponents of the asphalt plant showed up in force to oppose the rezoning bylaw. At the end of the day, the resulting public controversy was enough to convince one councilor to switch his vote, and on September 21st the RMOW’s Council voted to defeat the bylaw four to three.
Whether to enforce
But, even though the RMOW’s own lawyer agreed that the Asphalt Plant was operating illegally, nothing changed. The companies operating the Asphalt Plant did not move their plant.
While residents hoped that the RMOW would now force the plant to move, a motion by Councillor Ralph Forsyth to enforce the existing zoning bylaw died after not one Councilor seconded it. In addition, Mayor Melamed suggested that Council would not proceed with the proposed air quality bylaw to ensure that the asphalt plant operated according to stringent standards, implying that such an agreement could only proceed as part of the “now-failed agreement”.
This was taken by many (including myself) at the time as an indication that the RMOW would not act to enforce the existing bylaw – perhaps fearing a lawsuit from the Asphalt operator if they did so. Residents still thought as recently as an emotionally charged Council meeting at the beginning of April that the RMOW was not planning to take action. This created a bizarre situation in which the lawyers involved agreed that the zoning bylaws were being contravened, but the municipality would not enforce those laws and would not explain why it would not.
Whether because of negotiations with the Asphalt Operator, or further legal advice from Mr. Lidstone, or some other reason, it now appears that the RMOW is preparing to enforce its bylaw. Mr. Lidstone, in his letter dated April 11th (released yesterday), wrote:
The Resort Municipality has determined that the operation of the asphalt plant (including the manufacture of asphalt) on the Site is contrary to the applicable zoning enactment. … In consideration of your submissions to staff in regard to contract commitments and the time required for relocation, Council has resolved to require the asphalt plant use, including production and manufacture of asphalt, to cease and desist on or before May 13, 2011. Failure to comply will result in Council consideration of all of the enforcement powers it possesses under the Community Charter and Local Government Act.
This is great news for the residents of Cheakamus Crossing, who will not need to live with the health risks associated with the operation of an Asphalt Plant. And it’s great news for the rule of law – that secret information will not prevent the enforcement of a law.
Photos courtesy of David Buzzard Photography.
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