Two Mount Lorne residents have launched legal action against the territorial government over a recent amendment that could change the character and density of the area.

Gary Irvin and Shannon Moffatt are petitioning the Department of Energy, Mines and Resources (EMR) to withdraw an order — or exempt their Robinson hamlet from it which permits landowners in Mount Lorne, south of Whitehorse, to subdivide their lots.

"This is a breach of contract for the Robinson subdivision,” Irvin stated in his affidavit, filed this week.

In March, cabinet passed an order that "brings the Mount Lorne regulations in line with those of other rural neighbourhoods in the Whitehorse area,” according to an EMR release from March 31.

The amendment permits owners of properties larger than four hectares to "subdivide out” a second lot — one time only, and for a space not smaller than two hectares — affecting the bulk of Mount Lorne's 160 lots and their owners.

The lawsuit says area residents met with government officials in the late 1980s and agreed to reduce the proposed Robinson hamlet from a planned 150 lots, though that may be an exaggeration, to 26 lots.

A stipulation specific to the hamlet emerged that those lots could not be subdivided by the first generation of owners, "as this was not a good location to create a town if the 26 contiguous lots were subdivided,” Irvin wrote.

Peter Percival, a former resident of and advocate for the area, recalled that the original sale agreements from the late 1980s came on terms distinct from other subdivisions in the Mount Lorne area.

"The individuals who bought those original lots ... weren't allowed to subdivide them during the time they were acquiring them or even after they'd received them,” he recalled during an interview with the Star.

Sale agreements for other hamlets around Mount Lorne contained no reference to subdividing lots following a 10-year period or the full acquisition of title, he pointed out.

For those homeowners, only the Area Development Act — amended last month — prevented subdividing, rather than a sale contract on top of the legislation.

Percival recalled the Robinson subdivision as the only area in Mount Lorne with those particular terms, based on a homestead model of the gradual acquisition of a lot through its occupation and development, eventuating in title.

"If that contract between the government and the original purchasers is valid — and that's a big if — it would just catch those people who are original purchasers,” he said.

Percival thought roughly five of Robinson's 26 lots were still owned by the original buyers, who would then potentially be restricted from subdividing their properties.

Presumably, Irvin, known around the hamlet as Rufus, and Moffatt hope an exemption for their area would preserve its relatively rural character and low density.

They did not specify in their affidavits why they personally oppose moderate subdividing, a long-discussed issue in Mount Lorne and other Whitehorse-area locales zoned as rural-residential.

EMR spokesperson Ron Billingham said Thursday the lawsuit is "a real stretch.”

On the argument that the original contract for first buyers of the Robinson lots excludes subdivision of the properties, he said: "I don't know how much water that's going to hold, but that's not for me to say.” He noted the matter is before the courts.

Billingham said he believed the lots for all the Mount Lorne hamlets held similar contract stipulations.

"Those original agreements for sale back in the '80s all carried that clause,” he told the Star.

"Once the agreement for sale is completed, the agreement for sale becomes a mute sale and is replaced by a certificate of title,” which means the no-subdividing rule in the contracts becomes null, subject only to legislation.

Irvin, who claimed his property in 1988, added fire to his petition by suggesting there was "a conflict of interest concerning the fact that Lyle Henderson had title to lot no. 5 in Robinson subdivision.”

The suit implies that Henderson, the former director of lands and currently EMR's assistant deputy minister of sustainable resources, wanted to subdivide his lot and allegedly used his power inappropriately.

Irvin claims he told EMR Minister Brad Cathers as much. He apparently asked if the minister was aware of this "conflict of interest ... Brad Cathers said no.”

Henderson did not return the Star's messages requesting comment on the lawsuit Thursday nor today.

Billingham pointed out that working in government while living in the Whitehorse area makes it nearly impossible to avoid each and every matter that might affect the neighbourhood where one resides.

"I wouldn't want to be accused of a conflict of interest just because I live in Porter Creek,” he said.

Neither Moffatt nor Irvin, who is representing himself but does not have a phone, could be reached for comment.

The March 31 cabinet order amendment enables owners of properties larger than four hectares to "subdivide out” a second lot — one time only, and for a space not smaller than two hectares.

Under the new regulations, 93 of the 141 residential lots and 11 of the 19 agricultural lots in the area are eligible for subdivision.

"Experience has shown, however, that uptake on the opportunity to subdivide happens gradually,” the release states.

Rural residential property owners in the Takhini Hot Springs Road, Ibex Valley, Golden Horn and Mayo Road areas have been able to subdivide since 2004, with 70 new lots created since that time as a result.

A case management conference between the parties is scheduled for April 29.