The B.C. Court of Appeal has overturned a Supreme Court decision that halted work on the controversial Coulter Berry building in Fort Langley.
In a unanimous written ruling released Thursday (July 3), a three-judge panel said the Township of Langley council acted properly when it approved construction of the three-storey building that is bigger than the maximum size allowed in the heritage conservation area of downtown Fort Langley.
Chilliwack Supreme Court Justice Joel Groves said the Township had exceeded a Township bylaw, which allows council to “vary” the restrictions on buildings in a conservation area by approving a heritage alteration permit on the condition that the “the use or density of use may not be varied.”
Groves ruled in favour of the Fort Langley Residents for Sustainable Development and against the Township on Oct. 25, 2013, halting the construction.
Groves said instead of using a permit, council should have altered the zoning of the site through the usual process of public hearings.
A majority of council voted to appeal the Groves decision while at the same time moving to resume construction by adopting his suggestion of rezoning the land.
Work on the project resumed after council approved the change to a higher density following a public hearing that lasted three nights.
That hearing and rezoning was not legally required, according to the appeal court decision, which said the bylaw governing heritage density in Langley covers residential buildings in a given area “but it is silent on the density of commercial uses in that space.”
Mayor Jack Froese called the ruling “very, very, very reassuring.”
If the decision had been allowed to stand, Froese said it would have set a precedent that would have limited the ability of all B.C. municipalities to manage development.
“It’s important that decisions like this be made by elected councils, not the courts,” Froese said.
Froese was unable to say how much the legal battle cost the Township.
Coulter Berry builder Eric Woodward called the court battle “a pointless, sad chapter in Fort Langley’s history.”
“The court challenge really hurt the construction contractors and their families, the merchants, and Fort Langley as a whole more than me,” Woodward said in an emailed response to a Times query.
“I never doubted that the original heritage alteration permit process was the correct one,” Woodward went on to say.
“I always felt Justice Groves made a mistake, with a hasty, emotional decision from the bench.”
Woodward said the appeal court ruling also addresses those critics who claimed he and council were breaking the law.
“It certainly is great to have that clearly contradicted by the Court of Appeal, where they seemed to consider the nuance and implications of their actions much more seriously,” Woodward said.
A written statement issued by the Society of Fort Langley Residents For Sustainable Development expressed disappointment.
“This should be of concern to all those interested in the protection of a Heritage Conservation Area for future generations,” the society statement, released by Harold Whittell, said.
“We were hoping common sense would prevail,” Whittell said.
“Leaving this power [to decide density] solely in the hands of an elected three-year council seems dangerous to the overall intention of the declaration of a Heritage Conservation Area.”
Whittell said the society would continue to work to preserve the heritage conservation area in Fort Langley “for the benefit and enjoyment of future generations.”
“It is sad that the hard work of so many over the years can be forever altered by so few, so quickly,” Whittell said.