Opponents not beaten yet

Editor: Jim McMullen has warned of potential skullduggery in Kelowna (City may be plotting new legislation to get around possible court defeat, March 4). He says the city could be cooking up legislation with the province to overcome a possible defeat on the matter of the rezoning of public parkland.

Citing Lambert v. Resort Municipality of Whistler, et. al., 2004 BCSC 342, McMullen says the city has the ability to void any court ruling that goes against it.

I want to reassure the public there’s no cause for alarm. McMullen’s analysis is purely speculative, and thin on crucially important details. Let’s look at the story.

In 2003, Whistler passed a zoning bylaw to permit a hotel with an adjacent train station to be built. A local family, the Lamberts, argued in Supreme Court that illegal bargaining had occurred. They said the city had agreed to allow this land use only if the developers would, in exchange, provide Whistler with certain amenities. The judge agreed with the Lamberts and set aside the zoning bylaw. Whistler next called on the provincial government to deploy an obscure law called the Municipal Enabling and Validating Act (MEVA) to get the situation reversed.

MEVA was used five times in 2003, and has been used only three times in the last six years to effect change of one kind or another.

Gordon Campbell’s government jumped in gleefully, justifying the move in two ways. First, they said Whistler had acted in good faith when they passed the development bylaw. It turned out there had been a grey area in relation to the legal definition of amenities, and Whistler had done the best it could, according to the province.

Second, the Campbell government said that in light of the upcoming 2010 Olympics, they thought it would be in the province’s best interest for the development to proceed. I wondered how Whistler’s acting mayor of the day, Caroline Lamont, had fared. I learned that neither she nor the mayor were re-elected in 2005. Only two councillors were left with political careers once voters had their say.

The situation in Kelowna is different. There seems to be no grey area. The two bylaws passed at public hearing on Jan. 24 fail to conform with Bylaw 8000, the OCP, and the community charter.

Moreover, any reasonable council would comprehend that cities can’t do end-runs around the Supreme Court in order to quash legal victories without paying a steep political price. The opposition has not, in other words, been beaten before it wins.

Dianne Varga, Penticton