Langley Township has won a court battle over the controversial Coulter Berry building in Fort Langleyâ€™s downtown.
Three judges of the B.C. Court of Appeal have ruled that the Township was within its rights to approve the building with a Heritage Alteration Permit, rather than a full rezoning.
The plans for the three-storey building divided Fort Langley residents against one another. Those opposed felt the structure was too large and imposing and would damage the character of the historic downtown. Those in favour argued that it would bring jobs, below-ground parking, and new residents to the corner of Glover Road and Mavis Avenue.
After a rancorous public meeting, the Township council voted in favour of the project, but didnâ€™t rezone the site. They passed a Heritage Alteration Permit to allow construction.
Opponents, including the Society of Fort Langley Residents for Sustainable Development, said that wasnâ€™t a lawful way to change the use of the land.
The society launched a court challenge, and in October last year, Justice Joel Groves of the B.C. Supreme Court agreed that the Township had overstepped its bounds.
The Heritage Alteration Permit wasnâ€™t the right tool, the judge ruled, because it could not change the density of the building, and the three-storey structure was an increase in density. A rezoning should have been done, according to the judge.
While the Township appealed the ruling, developer Statewood Properties applied for a rezoning, and in the spring council passed the required bylaws for an updated version of the Coulter Berry design. Work on the project has since begun again.
Although the decision of the appeal court doesnâ€™t mean much for the state of the project, it may set a precedent on matters of municipal rights.
â€œDevelopment permits and development variance permits have been in place in British Columbia in local government legislation since 1985, as has the prohibition against varying use or density of use by their terms,â€ wrote Chief Justice Bauman in the appeal courtâ€™s decision. â€œOddly, the question now before the court has never been decided."
The lower courtâ€™s ruling was a â€œcommon sense approach,â€ wrote the appeal court justices. Groves ruled that a taller building was an increase in density.
However, the appeals court found that density (the number of houses or apartments on a plot of land) is a separate issue from the overall size of a building. The Townshipâ€™s original permit didnâ€™t change the density.
The Township had the right to regulate the size of the building, the appeals court ruled.
â€œThis is excellent news,â€ said Township Mayor Jack Froese. â€œThroughout this process, the Township obtained legal opinions at each step to ensure its plans were lawful. As a result, we were confident that it was lawful to issue the Heritage Alteration Permit.â€
Froese said this will clarify the rules for municipal governments.