Citizen uprising against Lakeshore Drive eight-plex in Penticton squashed by B.C. Supreme Court

Lakeshore lawsuit squashed

A group of Penticton residents' attempt to dispute an eight-unit complex development on Lakeshore Drive has been squashed by the B.C. Supreme Court.

Justice Wendy Baker dismissed a dispute filed against the City of Penticton by the "Penticton Society for Transparent Governance and Responsible Development," disagreeing with the society’s view that the city has permitted the construction of a building too large for the lot.

According to the Dec. 5 decision, the local society submitted the suit as a challenge to a zoning amendment bylaw made by the City of Penticton on Jan. 18, 2022, changing the zone of a lot of 602 Lakeshore Drive West from R2 (small lot residential) to RM3 (medium density multiple housing), allowing for the construction of a small apartment building on the lot.

Zoning changes and development permits for the eight-plex on the property went through a lengthy and angry public hearing in December 2021, and a narrow victory in a vote by council in January.

The zoning bylaw, which created three levels of zoning density, contemplated that higher and denser uses are permitted as lot size increases.

The society, which was incorporated in March, argued that the bylaw was “unreasonable” because it is inconsistent with the graduated densities outlined in the housing zones within the zoning bylaw and the zoning could not be changed to the larger lot since the “lot does not, on its face, meet the requirement.”

Their argument was that the subject lot was too small for the proposed building and was zoned into compliance by granting variances that are in contravention of Penticton’s zoning bylaws.

The city argued in its reply to the suit that minimum lot sizes must only be met for a subdivision, not a rezoning and that it has the “discretion to determine whether a particular parcel of land ought to be subject to the rules for the RM3 zone, as set out in the zoning bylaw,” an argument that made sense to the judge.

“I cannot agree that the city acted unreasonably in exercising the powers it is authorized to use pursuant to the [Local Government Act (LGA)]. The petitioner has not brought forward any evidence to suggest the city has acted in bad faith, gratuitously, or in an oppressive manner. The city has not acted in a way that could find no justification in the minds of reasonable people,” Judge Baker wrote.

The judge ruled that the city followed its procedures, received extensive reports from its planners, held public hearings, received an amended proposal from the owners to satisfy some concerns, and passed the bylaws properly in the meeting.

"The petitioner’s disagreement with the city’s decision, and its view that the city has permitted the construction of a building too large for the lot, is not a sufficient basis for a finding the city acted unreasonably in exercising its legislative powers.”

The suit was dismissed by the B.C. Supreme Court.

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