Quarry controversy returns to the courts

The City of Whitehorse is in court for a second time with the McLean Lake Residents' Association in a gravel quarry dispute that just won't go away.

The City of Whitehorse is in court for a second time with the McLean Lake Residents’ Association in a gravel quarry dispute that just won’t go away.
Skeeter Miller-Wright, on behalf of the residents association, filed paperwork Thursday afternoon, in Yukon Supreme Court, challenging Bylaw 2007-39, which was passed by city council Nov. 13.
The bylaw is the second application the city has received from Territorial Contracting to rezone an area at McLean Lake as a gravel quarry.
The first application resulted in Bylaw 2006-36, which granted the land being rezoned to IQQuarries.
That bylaw was struck down last August by Justice Ron Veale of the Yukon Supreme Court as invalid, for conflicting with the Official Community Plan (OCP) guidelines.
In that judgment, Justice Veale said, ‘There has been no detailed hydrogeological and hydrological assessment of the McLean Lake watershed,’ as is directed in the OCP for any gravel extraction plant.
Section 8.2.1 of the 2002 OCP says, ‘The purpose of this designation is to allow resource extraction and related activities away from existing and future residential neighbourhoods.’
A further section of the OCP says before any gravel extraction can occur at McLean Lake, a detailed hydrological and hydrogeological assessment must occur.
This study would show how the watershed works, identify the primary water source points, show main run-off and infiltration characteristics and the implications of water flow in the ecology of the watercourse.
The new application for rezoning, which appeared before city council Sept. 17, asks only for permission to set up a cement batch plant on four acres, and not gravel extraction on 10.
Territorial Contracting owner Ron Newsome told the Star in September he hoped leaving out gravel extraction from the application would negate the need for hydrological and hydrogeological testing until a few years down the road, when his company would revisit the issue.
Miller-Wright and the McLean Lake Residents’ Association say the studies are required for the rezoning, whether Territorial Contracting sets up a gravel extraction operation or not.
In paperwork filed in the Supreme Court, the residents association isolates a section of Justice Veale’s August ruling that reads, ‘If the zoning bylaw amendment is not in conformance with the OCP, it cannot be validated after its passage.’
This would mean before Bylaw 2007-39 can be passed, all requirements for a gravel extraction plant would need to be met, and not completed afterwards.
‘If that were the case, bylaws not in conformance with the OCP would be validated by some retroactive process, which the Municipal Act does not contemplate,’ wrote Justice Veale.
‘In this case before the bar, Bylaw 2007-39 provides the same IQ Quarries zoning in the McLean Lake area as in Bylaw 2006-36,’ writes the residents association in their court challenge.
‘No detailed hydrological or hydrogeological assessment has been completed and therefore is in direct collision with policy 11.2(4) of the OCP.’
Miller-Wright told the Star this morning that the residents association, as well as other city inhabitants, don’t want a gravel quarry set up. Period.
‘Our overall interest is to have the area around the lake protected from development,’ he said. ‘In the short term, we’re just saying the city is acting illegally.’
In addition to challenging the bylaw, the association is also arguing if no gravel extraction is to occur at the site, as Territorial Contracting is initially proposing, then the zoning of IHHeavy Industrial would be more appropriate.
Lastly, the association argues that the city is ignoring the ‘hundreds of residents’ and their opposition to Territorial Contracting’s plans, and is thus negating its mandated responsibilities to good governance under the Municipal Act.
Newsome said he was unaware of the court challenge when contacted by the Star this morning, but that his company plans to go ahead with its project, adhering to any legal requirements that may arise.
Mayor Bev Buckway had also just learned of the association’s challenge this morning, and said she was not prepared to comment.
Prior to voting on the bylaw a few weeks ago, Coun. Jan Stick reminded her colleagues there were public concerns that approving a batch plant without the quarry would still run counter to the Supreme Court order, and that the application not proceed until proper hydrology research is complete.
‘We did seek a legal review on this issue,’ city planning manager Mike Gau told council in response to Stick’s comments.
‘And the opinion was that there was no problem with this application.’