City discovers referendum bylaw error

The city gave Whitehorse residents incorrect information about a contentious bylaw passed by referendum in June.

The city gave Whitehorse residents incorrect information about a contentious bylaw passed by referendum in June.

“We actually did put out erroneous information during the (referendum) campaign,” city administrative director Robert Fendrick told council this week.

Leading up to the referendum, Whitehorse citizens were led to believe bylaw 2006-11 — which requires a planning study, greenspace map and area plebiscite for new developments in the city — would apply to all subdivision applications.

But after the bylaw passed, by a 51-per-cent margin, the city commissioned a municipal law and planning lawyer, Bill Buholzer, from the Vancouver-based firm Lidstone, Young and Anderson to review the bylaw guidelines, planning manager Lesley Cabott told council.

Buholzer studied the bylaw’s wording and found it would only apply under specific circumstances.

He said it only applies to subdivisions that need an area development scheme, which is a long-term plan done in addition to the official community plan.

And the city’s official community plan identifies only six neighbourhoods as still needing area development schemes — the Lower Bench in Porter Creek, beyond Copper Ridge, the former White Pass Tank Farm, Takhini Range Road, Porter Creek Extension and the Long Lake area.

And once an area development scheme is approved, the bylaw will not apply to developments in that neighbourhood unless a new scheme is considered.

This is not what voters were told before heading to the polls.

Nor was it explained on the ballot question.

Whitehorse mayor Ernie Bourassa and the rest of city council appeared surprised by the news on Monday.

“I’m somewhat confused here,” Bourassa said to Cabott.

“Are you now telling me that, some of the comments that we made during the referendum process in terms of what was going to be required for any single-lot subdivision, that sort of thing, does not apply, now that we’ve got this legal opinion?” he asked.

“To me this now sounds like the bylaw does not meet the intent that the petitioners had requested.”

The bylaw was initially prepared in response to a petition lead by Porter Creek Community Association president Carole Bookless in February.

“We originally believed that it was going to apply to every subdivision and I think that’s what the intent of the referendum question was,” said Bourassa.

“Now the way that it’s been drafted — it does not appear that way.”

The oversight was simply a mistake, said city manager Dennis Shewfelt in an interview Tuesday.

The sections in the bylaw specifying the need for the area development scheme were originally written to say the bylaw would only apply to developments of 30 lots or more.

But that requirement was taken out after residents complained they didn’t want to see 29-lot subdivisions.

“So that was removed but the area development scheme requirement remained, and we were doing this somewhat in haste because we had a timeline we were trying to follow that’s set out in the Municipal Act,” said Shewfelt.

“So, frankly, we missed that bit.”

And now the bylaw is set in stone for a full year.

“At this point there’s nothing we can do,” Bourassa said Tuesday.

“In the Municipal Act we can’t touch the bylaw for a year. How it’s written is how it’s written.

“It would have been nice to have this legal opinion prior to the referendum,” he told administration Monday.

“It certainly would have,” replied Fendrick.

City administration is still in the midst of determining how the bylaw will be applied.

It plans to have more details ironed out by next Monday’s council meeting.

Meanwhile, the city expects to apply the bylaw to a proposed subdivision development in Porter Creek’s Lower Bench this fall.

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