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Developer wins case against City of Rossland

Court rules that the city acted in bad faith when considering development permit applications
Rossland developer applications for permits to remove trees on private property was denied by Rossland council in August 2021. Photo: Jim Bailey

The City of Rossland was ordered to reconsider a local developer’s formerly rejected development permits.

Earlier this month, BC Supreme Court Justice Lyndsay Lyster found the city acted in bad faith when considering the four development permits requested by Rossland developer Warren Hamm.

“The conditions precedent to the development permit applications had all been met by the petitioners, and the City was under a duty to grant the applications,” Lyster wrote.”I have also found that Council acted in bad faith in rejecting the applications.

“They acted contrary to the OCP (Official Community Plan), and knew or ought to have known that their decisions to reject the applications were unlawful. They imposed obligations on the petitioners not found in the OCP in order to prevent the logging which they found distasteful. This amounts to an improper purpose.”

Following much discussion at its July 12, 2021 meeting, Rossland council consulted its legal team regarding the development permits for four properties on the south side of Granite Mountain: three adjacent to the Rock Cut Neighbourhood Pub and its neighbouring strata subdivision, the other one opposite Red Mountain Resort on Highway 3B and Ritchie Road.

Some councillors maintained that the developer’s main purpose was not to build, but benefit by clear cutting existing trees, worth an estimated $375,000.

“This is perhaps checking off a few forestry restriction guidelines, but this is a logging application put forward as a development permit and I will not support it,” said former Coun. Dirk Lewis at the meeting.

Hamm’s forestry consultant deemed the tree removal necessary to remove diseased trees and reduce fuel load to minimize the risk of fire. The application also said that reforestation will be delayed for two years while development plans are determined. If no plan has emerged by then, the entire property will be replanted.

Read: Logging denied at four Rossland sites

Rossland City staff had recommended council approve the permits, and Coun. Janice Nightingale and Coun. Chris Bowman also voiced their support.

“This isn’t old growth forest,” said Nightingale. “This area burned 70 or 80 years ago. It is private land and the applicant has met all of the City’s prescribed guidelines.

“He has a reforestation plan along with a deposit held by the City for a value of 125 per cent of the value of the reforestation costs. We got a legal opinion because we wanted to know what would happen depending on where this went and I really don’t feel comfortable putting taxpayer’s dollars at risk to spend more money on legal fees.”

The Rossland News contacted Mayor Andy Morel, who was then a councillor, but he could not comment, saying: “They are reviewing the findings and we’re not allowed to say much right at the moment.”

Nor could Morel confirm whether the city would appeal the decision.

“It’s at that point, where it’s back in the hands of our lawyers and they are providing information back to us.”

Lyster noted in her review that a development permit was not only required for the purpose of building structures.

“Such an interpretation would mean that it would be impossible for a person to remove diseased vegetation, whether that be trees infected with Armillaria or a blighted rosebush, unless they also intended to construct a building or engage in similar activity.

“It would also be impossible for such a person to remove vegetation to reduce wildfire risk to existing structures. This would be an absurd interpretation.”

In a vote on Aug. 9, 2021, council moved by a majority to reject the development permits, and in September, 2021 introduced a new Tree Management Bylaw, that replaced a more lenient Tree Retention Bylaw.

“The petitioners (Hamm) say that the new Tree Management Bylaw, if valid in its application to the petitioners, would have the practical effect of preventing the petitioners from carrying out the forest management proposals at the various subject lands that were put before council on July 12, 2021, and Aug. 9, 2021,” Lyster wrote.

Under the new bylaw, there is no logging permit exemption for privately owned forest lands and trees must be replaced on a two-for-one ratio.

“The conclusion that the new Tree Management Bylaw was adopted at the September 2021 council meeting because of the petitioners’ development applications is inescapable,” Lyster wrote.

“Allowing the City to apply the New Tree Bylaw to the petitioners under the development permits in issue in this case would provide the petitioners with a Pyrrhic victory, and enable the City to do the very thing that Mayor (Kathy) Moore rightly acknowledged would get the City ‘in some real trouble’, that is, ‘if we change the law after he’s already put in his [application].’”

Hamm now has 24 months to reapply, under the previous tree management bylaw. He also has the option to seek further costs and damages.

Read: City seeks legal advice on development permits

Jim Bailey

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