Updated: ‘Common sense’ Coulter Berry court reasons released

Judge explains why he ruled against Township approval of controversial project

Coulter Berry drawing

The B.C. Supreme Court judge who halted work on the controversial Coulter Berry building has released his written reasons for overturning the Township approval of the controversial project, calling it a “common sense” decision.

Justice Joel Groves said the Township violated its own regulations when it approved a heritage alteration permit (HAP) for the project that allowed construction of a three-storey building that was bigger than the maximum size allowed in the heritage conservation area of downtown Fort Langley.

Under the Township bylaw, a heritage alteration permit allows council to “vary” the restrictions on buildings in a conservation area, but it does not allow bigger buildings.

The bylaw specifically says “the use or density of use may not be varied” which means the case turns on one simple question, Judge Groves wrote.

” … has Langley changed the density of use of this parcel of land by allowing a footprint in excess of 67 per cent of the area of the land and by allowing a building to three storeys high rather than two,” Groves said.

“Common sense, and any reasonable interpretation of density of use, suggest that they have.”

The proposed building is approximately 50 per cent higher than the current zoning allowed and the council also allowed a “modest increase in the footprint of the building on the lands in question,” Groves said.

He also wrote that council could legally change the zoning of downtown  Fort Langley to approve bigger buildings like Coulter Berry “through the usual process of public hearings and public consultations.”

The Chilliwack judge ruled in favour of the Fort Langley Residents for Sustainable Development and against the Township on Oct. 25, halting the construction.

In his brief verbal ruling, the judge said he would give full written reasons for his decision at a later date.

Council approved a court challenge of the decision on Nov. 4, before the judge’s reasons were released, because of court rules that say a challenge must be filed within 30 days of a decision.

The nine-page decision was filed on Wednesday, Dec. 11 and released Thursday, Dec. 12 by the Township.

In a written statement issued at the same time, mayor Jack Froese said the judge took a different view of density than the Township did.

“I want to make it clear that Council did its due diligence by conferring with legal counsel prior to proceeding with the approval of the HAP and understood the definition of density somewhat differently from Justice Grove’s interpretation,” Froese said.

Township lawyers will review the written reasons before council decides whether to proceed with the appeal, he said.

Froese added council could do what the judge said was permitted and proceed with rezoning the property, saying it will give the possibility “serious consideration as it makes every effort to resolve this issue.”

Work on the building began in late summer.

It was the subject of a lengthy public hearing before council approved it, and has faced continued opposition from  the Fort Langley Residents for Sustainable Development and the Langley Heritage Association.

Harold Whittell, a  director of the Fort Langley Residents for Sustainable Development, said any rezoning would still have to follow the limits established by the Fort Langley official community plan (OCP).

“Any attempt by the Township to spot zone or circumvent these safeguards would be vehemently opposed,” Whittell said.

He said rather than continuing the court fight, council should  consider a redesign that would bring Coulter Berry within the size restrictions.

“Our society believes there are other options available to the Township to find a solution to the present situation that may offer a win/win for all concerned,”  Whittell said.

Eric Woodward, the developer of the Coulter Berry project, said the shutdown of his project has also put a crimp in plans to bury the overhead wiring in the village core area early next year.

That’s because the temporary shoring walls for the building’s underground parkade required shoring anchors that run underneath the street and would interfere with construction of underground power line conduits, Woodward said.

“Construction [of the underground wiring] will now very likely not commence until at least the winter of 2015, delaying the project’s completion until at least 2016 or 2017,” Woodward said.

 

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