The McLean Lake Residents Association has lost its latest battle with the city over development in the area.

On Wednesday, Yukon Supreme Court Judge Leigh Gower released a ruling in the city's favour after the residents' group challenged the bylaw to rezone the section of commissioner's land Quarries Restricted from Future Development.

The restriction on the zoning means that only concrete plants are permitted as a primary use on the site.

"The City of Whitehorse will certainly stand by the decision," Mayor Bev Buckway said in an interview this morning.

She also commented though that the association was certainly within its right to take the city to court and sometimes that is the only way to resolve such issues.

The decision makes it clear the rezoning was within the city's jurisdiction, she added.

It comes after a previous decision by Yukon Supreme Court Justice Ron Veale that favoured the residents' association when it challenged the rezoning of the land to allow for a gravel quarry.

Veale ruled the city had contravened its Official Community Plan (OCP) by voting on the rezoning before required assessments were done.

Territorial Contracting, which is seeking the rezoning, then came back to council asking for the rezoning to Quarries Restricted so it could proceed with the concrete batch plant.

After approving that rezoning, the association once again took court action against the city.

Skeeter Miller-Wright, who has led the court battle for the association, argued the rezoning contravenes the city's own zoning bylaw and the territory's Municipal Act on two grounds, Gower's 23-page decision notes.

With the concrete plant processing materials from other locations, Miller-Wright argued, it is contrary to the purpose of the quarries zoning under the zoning bylaw as well as a section of the Municipal Act.

He also told the court the rezoning violates council obligations that fall under the Municipal Act to "provide a responsible, accountable and good government" for the city.

"In particular, the petitioner (the residents' association) says that the council violated its 'mandate' to reflect the concerns of a significantly large number of city constituents in its decision to enact the bylaw," reads the decision.

Gower noted the background of the case, which followed Territorial Contracting's proposal for a quarry and concrete batch plant beginning in 2005, through the first court case and then the application for the concrete plant only.

The justice said Miller-Wright had shown no evidence in his documents nor during his submission of city council acting in bad faith, other than arguments that council had exceeded its jurisdiction or failed in its mandate under the Municipal Act.

"Therefore, I have assumed in these reasons that the residents' association has abandoned bad faith as an issue on this application," reads the decision.

Gower went on to note the city cannot proceed with developments contrary to the OCP.

"Therefore, on receipt of a zoning application, council must look first to the OCP and secondly to Zoning Bylaw 2006-01," reads the decision.

"In that regard, the IQ-Quarries zone designation is consistent with the 'natural resource' land use designation for the subject lands as set out in the OCP, namely 'to allow resource extraction and related activities,' " Gower wrote.

With concrete plants considered a related activity, the rezoning does not contravene the OCP, the judge ruled.

The residents' association also argued the application for rezoning to a quarry zoning should have been denied as inappropriate because gravel isn't being extracted from the site.

Gower notes several sections of the OCP and zoning bylaw showing the city's discretion in zoning.

"Accordingly, I conclude that city council had the discretion to approve the application by Territorial Contracting for the IQ-Quarry zoning for the purpose of constructing and operating a concrete plant on the land, notwithstanding that the aggregate materials to be processed would come from on or under site," reads the ruling, which then goes on to note other cases supporting Gower's position.

The judge also quotes from the Municipal Act extensively on the obligation for good governments from the city.

The residents' group also relied on the act in showing the provision for the city to provide a public hearing process and notices on zoning amendments.

During his own presentations to council, Miller-Wright warned the city against ignoring the interests of hundreds of residents opposing the bylaw, Gower noted from Miller-Wright's affidavit.

"However, the opponents referred to by Mr. Miller-Wright were apparently all in relation to the previous zoning application," Gower wrote.

He pointed to an advertisement dated Feb. 9, 2007 which shows the hundreds of names as the Friends of McLean Lake.

The ad pre-dated the rezoning for a concrete plant only, referring to the quarry and concrete plant just before it was approved by the city.

"It was that bylaw which was subsequently declared invalid by Mr. Justice (Ron) Veale," reads the ruling.

"Further, Mr. Miller-Wright conceded at the hearing of the current petition that the 150 people who signed cards addressed to the mayor and council, as well as the 72 presentations referred to, were also all in relation to the previous application by Territorial Contracting for both a concrete plan and a quarry on the subject lands," Gower wrote.

The only evidence showing the opposition to how much opposition there was to the concrete plant only site comes from a report to council last November and minutes from that meeting.

Those show there were two notices published in the newspaper about the rezoning and 18 letters sent to property owners within one kilometre of the area.

The city saw three people come out to the public hearing to oppose the rezoning, with three letters received. Only two of those letters spoke against the concrete plant.

There was no evidence, Gower stated, that Miller-Wright was speaking on behalf of those who opposed the original application for the quarry and concrete plant.

In his affidavit, Miller-Wright suggests he's acting on the association's behalf because it is a "directly related proceeding" to the first case.

"He did not expressly state in that affidavit that he obtained authorization from the association's board of directors to proceed with this petition," Gower wrote.

He noted, though, that the city had no objections to Miller-Wright's standing or authority to act for the association.

The judge also noted "grave concerns" with Miller-Wright's arguments on the amount of opposition to the rezoning.

"Indeed, it is central to his argument on this point that city council failed to heed and reflect the concerns of a 'significant' number of the city's constituents in that regard," Gower wrote.

"However, objectively, it appears that there were no more than five submissions opposing the application, which would seem to be a relatively modest number, given the city's rather extensive efforts at providing notice to the area's residents."

The judge wrote, based on a previous case, that rather than counting opinions for and against an application, it has to look at whether public input was fully and fairly considered and a decision based on the good of the community and in the general public interest.

"This is what the mayor and councillors are elected to do in our representative municipal democracy," reads the decision.

"Further, council is presumed to have acted in exactly that fashion. It is up to those challenging the bylaw to prove otherwise."

Citing further cases, Gower concluded the association did not show council's decision was made with improper motive nor through abuse of discretion.

The city also did not exceed its jurisdiction, the judge wrote.

Even if council had contravened the Municipal Act, it likely wouldn't have impacted the voting result to rezone, with the OCP process showing extensive consideration for the use of the land as a natural resource and quarry uses.

While Miller-Wright has received the decision, he's making little comment.

"We're studying it and considering our future options for action," he said.

As the association looks at it, a petition to declare the McLean Lake area park continues to circulate through the city.

Buckway noted as well, the city had already planned to review the possibility for a park in the area when it reviews the OCP in the fall.

Meanwhile, it will now be up to Territorial Contracting to bring forward any further applications for the concrete plant to the city.

Territorial Contracting could not be reached for comment today.