Whitehorse Daily Star

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Garry Umbrich

Hot Springs Road residents want case reopened

The Hot Springs Road Development Area Residents Association

By Emily Blake on April 28, 2017

The Hot Springs Road Development Area Residents Association has filed new documents in its case against the Yukon Government listing Scott Kent, the former Yukon Party minister of Energy, Mines and Resources (EMR), over a residential development by Tahkini Hot Springs Ltd. (THS).

Legal counsel for the residents association has filed an application to reopen the case and add new evidence, have the defendants declared in contempt of court, and for special costs and relief.

The update comes as some residents from the hot springs community are concerned about alleged ongoing development in the area by THS.

That’s despite the Yukon Supreme Court’s March ruling prohibiting further development until community consultation and rezoning conditions are met.

Among the court documents are a series of e-mails between Brian Farrell, president of the residents’ association; Stephen Walsh, lawyer for the residents’ association; and Mike Winstanley, lawyer for the Yukon government, outlining the new issues in the case.

On March 29, Walsh e-mailed Winstanley, alerting him of Garry Umbrich’s (president of THS) alleged ongoing construction activities at the hot springs north of Whitehorse.

 “Despite the court’s recent ruling, there has been a steady flow of trucks (Kilrich, Home Hardware, etc.) delivering large loads of construction materials to the hot springs,” reads the e-mail.

The following day, Farrell e-mailed Walsh about a call he’d received from Steven Mills, the deputy minister of EMR, on how the territorial department was addressing the issue.

Farrell wrote that Mills said the government was waiting to hear from THS on its position and that three residences were under construction, one of them now clad to weather and another moving along to that stage.

Mills also expressed concerns that the court decision would put hardships on the department and THS and indicated that a possible way around the problem might be to redesignate the residences, possibly as staff housing, wrote Farrell.

He also noted that he received a call from the CBC asking if he knew what was going on at the hot springs.

“I said it had nothing to do with us but EMR or Justice. That was all to the conversation. But from his voice and sense of chuckle in it, he seemed to think he was onto something,” he wrote.

This was followed by a series of e-mails between Walsh and Winstanley adressing legal concerns around the development.

Walsh expressed his perspective that the government was “clearly in contempt of court by allowing this construction to continue.”

But Winstanley noted that the government had issued cease-and-desist orders to owners of three lots on the property March 21.

He also said he was informed that, “the senior development officer has and will continue to conduct random inspections to ensure compliance with the cease and desist order.”

Walsh then reiterated residents’ concerns about the three residences currently under construction. He also stated his position that the court’s March ruling applied to all of the lots on the THS property.

“I live in the vicinity of the hot springs and have personally witnessed the trucks loaded with building supplies heading into the hot springs property and share my clients’ concerns that residential construction is continuing despite the very clear terms of Madam Justice Maisonville’s ruling,” he wrote.

Umbrich spoke with the Star about the construction at about noon today.

He said construction is continuing on two residences, as allowed. He added the no-work order on the lot was lifted after four days.

The third building being constructed, Umbrich explained, switched designation from a residence to a vacation home.

“We’re perfectly within our right to build a vacation home,” he said.

Umbrich noted that when the public consultation process begins, likely in late May or early June, he plans to ask for the vacation home to be re-designated as a residence. He and his wife hope to make the residence their permanent home.

As well, he noted the issues involved in the case are complicated and expressed frustration that the agreement previously approved by the government now has to go through a community consultation process, and re-zoning will be decided upon by cabinet.

The residents’ association, comprised of approximately 25 members, filed a statement of claim in June 2016 over concerns that the development would see a number of new residences in the rural area, causing such issues as increased traffic and noise.

It asked that the 2012 development agreement, amended in 2015, be found void as it did not comply with the local area plan that was approved in 2002.

The association argued that the 2002 plan allowed for only two residences per lot and any additional residences would be subject to community consultation, rezoning and site plan approvals.

In 2012, the government gave THS permission to subdivide the property into smaller lots. And in 2015, the agreement was amended to give three lots a greater capacity of nine, three and five residences per lot. These agreements did not involve consultation nor rezoning.

But the defence argued there was a special provision in the plan that allowed the developer to transfer development potential, or shift the number of residences allowed from one plot to another.

Because THS was not planning to develop more than a total of 20 residences, the defence said, they did not require consultation to make the amendment.

However, Supreme Court Justice Miriam Maisonville disagreed, and ruled in favour of the residents association.

She prohibited development until compliance with the requirements of consultation and rezoning are met.

“It is my finding that the conditions have been triggered, and that the Government of Yukon must first have community consultation, rezoning and site plan approvals before permitting the developer to consolidate residential development potential,” she wrote.

Comments (7)

Up 1 Down 2

Support reopen on May 4, 2017 at 8:23 pm

I support a legal reopening of this case as long as the residents are paying their own legal costs and not burdening the Yukon Taxpayer.

Up 5 Down 1

Salar on May 3, 2017 at 10:37 pm

Nimby!

Up 22 Down 0

canon2000 on May 2, 2017 at 10:18 am

What will they say when KDFN and TAAN starts developing their lands and become our neighbors ?

Up 20 Down 1

Former Resident on Apr 30, 2017 at 7:43 pm

"They aren't saving the Yukon for you, they are saving it from you"

Up 39 Down 1

An owner on Apr 29, 2017 at 2:33 pm

I know first hand that some of the parties involved in the residents association, people that are against congestion in the area, have build additional cabins/residences that they rent out. The hypocrisy is palpable, and it is unfortunate that they are using own tax dollars for this ridiculous persuit. I imagine the real reason this is being reopened is for their lawyer to have a second chance at getting paid for his work.

The judges ruling in March is clear as day, and there are only two residences being built. No one is in contempt. See you all at the consultation.

Up 77 Down 4

Squatters on Apr 29, 2017 at 12:11 am

Seriously, some of the "residents" and possibly the legal counsel themselves are former squatters (AKA, people who got land for next to free, under ambiguous terms). Now, years later, the squatters are complaining about a developer and potential new home owners in their "squatter" back yards. Can someone please, as in a reporter, look into the terms in which the legal council, resident got his lot and report on that. Let's put things in perspective.

Up 74 Down 6

BnR on Apr 28, 2017 at 5:24 pm

Just tonight I saw in the paper two notices of Hot Springs road residents making application to subdivide their properties into smaller residential parcels.
Years ago, these "ag leases" as we affectionately refer to them, came available for people to develop agricultural properties. Well, fast forward, and the number of people who have never grown s**t yet on them, yet reaped a windfall when subdividing them for more country res style lots is staggering. What's the popular it? Well, methinks the people complaint about Mr. Umbrichs development should stop throwing stones in their own glass houses. I would bet money that the majority of them are probably in contravention of some sort of zoning regulation or building code if you looked closely.

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