Whitehorse is being taken to court over its decision to allow a batch plant near McLean Lake.
A city bylaw, passed on November 13th, is invalid, said Skeeter Miller-Wright of the McLean Lake Residents’ Association.
The lot was rezoned to quarries, but restricted to allow only a batch plant.
That’s not the correct city zoning for the use, said Miller-Wright in his 12-page affidavit to the court.
The bylaw also contravenes the previous Supreme Court ruling against the city.
And it violates rules for accountable government under the Municipal Act.
The batch plant application was brought forward by Ron Newsome’s Territorial Contracting Ltd.
The original application was for both a gravel quarry and concrete batch plant.
It was passed by council, but quashed in August by Supreme Court Justice Ron Veale because the city had failed to do adequate water testing.
Detailed hydrological and hydrogeological testing is required under the official community plan before gravel can be quarried in the area.
The new bylaw rezoned Newsome’s four-acre parcel of land to quarries, but carried a restriction that it could be used only for the batch plant.
Quarry zones “provide a site for the on-site removal, extraction and primary processing of soil and aggregate materials found on or under the site,” according to city zoning bylaw 2006-01.
Therefore, processing plants such as batch plants are listed as a primary use in the zoning.
However, because Newsome plans to truck in gravel from quarries in the surrounding area, and not take it from the site, this is not the proper zoning, said Miller-Wright.
Heavy industrial would be a more appropriate zoning.
Heavy industrial zones are “for large-scale industrial uses and other uses that may have large land requirements and potentially pose some nuisance effects on adjacent uses,” according to the bylaw.
A concrete plants fits this designation, especially when it is processing off-site materials, said Miller-Wright.
Zoning the land for quarries when it should be heavy industrial contravenes the Municipal Act, he said.
Even without gravel extraction, the new bylaw violates the court’s decision, said Miller-Wright.
The city had suggested a development agreement to meet obligations under the official community plan, said Veale in his judgment.
“I disagree with this proposal to the extent that it suggests the city can place conditions on the developer after the zoning bylaw approval to meet its (official community plan) obligations,” he said.
The restriction on the quarry zoning is an example of a development agreement, which the judge disagrees with, said Miller-Wright.
As well, the city was not accountable to its constituents, said Miller-Wright’s affadavit.
Municipal governments “are responsible and accountable to the citizens they serve,” according to the Municipal Act.
“Public participation is fundamental to good local government,” it states.
“When constituents in significantly large numbers make it clear to the government they have well-reasoned, well-substantiated concerns about a proposed development project, it is government’s mandate to reflect those concerns in its decisions,” said Miller-Wright
“Hundreds of residents made their well-founded, legitimate, significant opposition to Territorial Contracting Ltd.’s proposed development known to city council.
“Council ignored the interests of those residents of Whitehorse (and) showed flagrant disregard for its legislated mandate and its duty to residents of Whitehorse when voting on the proposed bylaw,” he said.