The District of Ucluelet has won its latest legal battle with Onni Group, sending the owners of the roughly 376-acre Wyndansea site back to the drawing board.
Onni had hoped to subdivide one of its parcels on the land into 30 strata lots, dubbed the Signature Circle Subdivision, which would house both residential and vacation rental properties.
That plan was nixed by two bylaws adopted by Ucluelet’s municipal council on Sept. 28, 2021, and the district denied 29 building permits Onni had applied for.
Onni argued the new bylaws were unreasonable and had been passed by council in bad faith. The group further argued that if the bylaws were to be allowed, their use of the subdivision should be considered lawfully non-conforming, or grandfathered in.
Ucluelet argued that the bylaws had not been passed in bad faith and claimed council “was faced with an imminent land development it did not support and it reasonably acted accordingly,” adding that the lawful non-comforming claim was not supported by facts, which B.C. Supreme Court Justice, The Honourable Justice Lauren Blake, agreed with.
“Upon a careful review of the record leading to the Council’s decision to adopt the Bylaws, I do not find its decision to be unreasonable, nor to have been made for an improper purpose nor in bad faith,” Blake wrote in her ruling announced on Oct. 26. “Further, I do not accept that the proposed use of the Subdivision satisfies the legal requirements to be determined to be lawfully non-conforming.”
Ucluelet mayor Marilyn McEwen told the Westerly News the district was happy with the decision and is looking forward to discussing a new development plan with Onni.
“We were all pleased with the announcement of course that we won that legal battle with them. We’re actually looking forward to getting back to the table with the Onni Group to see what they have next to propose to us,” McEwen said. “In the meantime, our OCP has been adopted and that is going to change somewhat what they are allowed to do with those lands.”
She added that council’s recently elected council had not yet had a chance to digest Blake’s decision, but would be discussing the matter soon.
The Wyndansea site was once destined to become a Jack Nicklaus designed golf course that would have included suites, vacation rentals and a hotel. That project went bankrupt however and its creditors voted in favour of Onni’s purchase offer in 2014, beginning what’s been a sometimes tumultuous relationship between Ucluelet’s council and the developer.
The District of Ucluelet was one of the project’s roughly 180 creditors and voted against the sale, claiming they had not been informed of Onni’s plan and were owed a $1 million amenity payment before any construction could take place on the lands.
“The district considers it has been unjustly treated given the timing of the proceedings during the known District holiday office closure and the lack of identification of pertinent information to the Court in the CCAA Proceedings regarding the Districts interests,” read a resolution from Ucluelet’s council in January, 2015.
In 2018, Onni hosted an open house event to bring council and the community up to speed on its plans for the property, dropping the golf course idea and instead focusing on residences and short term rentals. The plan introduced at the open house involved
450 single-family residences, 600 units of multi-family residential, including triplexes and six-plexes, and 400 units of tourism and commercial accommodations.
In April 2021, the district received a request from Onni to begin selling lots on the site, but council countered that the group would need to submit a full development plan before selling any lots.
Blake’s ruling lays out that during a special meeting held on May 4, 2021 the two bylaws behind the legal dispute were proposed. The first bylaw restricted the 30 subdivided lots known as Signature Circle to “low-density rural residential development,” with no vacation rentals permitted. The second bylaw reduced the maximum allowable size for each dwelling, while maintaining that “no ancillary commercial tourist accommodation or vacation rental would be permitted.”
Both bylaws were given first reading in May, 2021 and the district received a letter from Onni a month later opposing the changes.
The bylaws were adopted by council on Sept. 9, 2021, leading to the legal dispute filed by Onni on Nov. 29, 2021.
“I am satisfied that the adoption by Council of the Bylaws was a reasonable and proper exercise of its zoning authority,” Blake wrote. “Council was downzoning the Subdivision to stop a development it believed was not in the best interests of the community, and such a concern was reasonable. The underlying rationale of this concern and ultimate decision is transparent, intelligible, and justified, and in all of the circumstances the decision of the District to adopt the Bylaws was reasonable.”
Blake also determined the council had not acted in bad faith and did not accept Onni’s suggestion that their intended use of the property be grandfathered in, ultimately dismissing the case.
andrew.bailey@westerlynews.ca
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