By Ted Lewis and Liam Robertson, Kuhn LLP
When municipal bylaws change, such changes can impact the way a business will make decisions about accepting or rejecting project opportunities. The recent case of Mullany v. Squamish-Lillooet, 2019 BCSC 1581 considered a scenario where a bylaw was amended after an application for a building permit had been submitted.
The Facts
The Petitioners owned a property located in the Agricultural Land Reserve in the Squamish Lillooet Regional District (“District”).
The Petitioners planned to convert their existing farm building from a horse riding arena into a medical marijuana production facility. This use was permitted under the zoning bylaws and provincial laws that applied at that time.
The Petitioners applied for a building permit on January 14, 2014.
On October 27, 2014, the District amended its zoning bylaw to prohibite medical marijuana production facilities on parcels of land less than 60 hectares in dimension.
The District issued the Petitioners building permit on December 17, 2014.
The Petitioners commenced work on the property and within the farm building. This included excavating and moving material to permit the construction of a new concrete foundation.
Construction throughout the permit term was intermittent. This was due to the Petitioners need to finalize the interconnection options for the property, propose minor changes, and obtain financing.
On July 12, 2018, the District revoked the building permit without warning to the Petitioners. The stated reason for revocation was that the District had been contacted by a realtor about the property, triggering a review concluding that the Petitioners were in contravention of the bylaws. This was only six months before the permit was set to expire.
The District provided several additional reasons for revoking the building permit, such as being in non-compliance, failure to order an inspection, and a lack of construction progress.
The Petitioners had already incurred approximately $400,000 in consultant fees and approximately $2,800,000 in their application to Health Canada to become a licensed producer of marijuana.
The Petitioners took the District to court after repeated refusal to extend or reissue the building permit.
The Decision
The court noted that a building inspector has very little discretion to deny a building permit application that complies with the relevant bylaws.
The question becomes whether such decisions are “reasonable”.
A reasonable decision is one that demonstrates justification, transparency, and intelligibility and falls within the range of possible and acceptable outcomes. The District decision fell short of this standard, particularly regarding their decision to revoke the permit when only six months were remaining.
The District argued that the building was not “under construction” and therefore they were able to revoke the permit early. This was because of the slow progress that had been made over the permit term.
The judge found that the Petitioners had showed a “commitment to use” and that construction was “clearly underway”. The judge found that the suddenness of the election to end the permit was unreasonable.
Lessons Learned
Developers and businesses alike should be aware that municipal decisions may be unreasonable if an application is compliant with the bylaws and is subsequently revoked or rejected.
Businesses, where possible, should be diligent about maintaining familiarity with current bylaws and bylaw changes that are going to be implemented. These proposed bylaw changes can impact the way businesses operate and reflect an opportunity for businesses to maintain a proactive approach. ▪
This article was written by Ted Lewis, lawyer, and Liam Robertson, articled student, who practise in construction law with the law firm of Kuhn LLP. This article is only intended as a guide and cannot cover every situation. It is important to get legal advice for specific situations. If you have any questions or comments about this case or other construction law matters, please contact us at 604.864.8877 (Abbotsford) or 604.684.8668 (Vancouver).
