A judicial review of a controversial four-storey condo-retail development in Cordova Bay will go ahead in B.C. Supreme Court without a bid to try to stop the development.
The petition is now seeking only a declaration on the priority of municipal zoning bylaws and official community plans.
A petition filed March 27 by residents Derek Hopkins and Karl Doetsch maintains the wrong set of rules was used to approve the new development at 5120 and 5144 Cordova Bay Rd. — resulting in it being four storeys rather than one or two.
Saanich council voted 8-1 on Jan. 29 in favour of approving a development permit for the mixed commercial and residential project, which includes three four-storey buildings. Only Mayor Richard Atwell voted against it.
The petitioners maintain that when the development permit was approved, council “went against the official community plan,” said lawyer David Busch of Pearlman Lindholm, who is representing petitioners Hopkins and Doetsch.
The zoning bylaws for the area and the official community plan — specifically appendix N, which deals with development permit areas — are in conflict, Busch said.
The official community plan says new buildings in the area should not exceed 7.5 metres in height, he said. “It is our understanding of the law that the official community plan trumps zoning bylaws.”
The petition originally asked for a declaration that Saanich must follow the official community plan in considering developments and that the permit for the Cordova Bay development be rescinded.
Hopkins and Doetsch are now focusing on the first part of the petition and seeking a declaration that the official community plan supersedes zoning bylaws, Busch said.
“My clients would be very happy to get the height changed, but at this point are taking a forward-looking perspective,” he said. “What my clients are looking for is guidance from the courts so this doesn’t happen again.”
While the declaration could potentially apply to all municipalities, “we’re only looking specifically at Saanich,” Busch said.
Alan Lowe Architect Ltd., originally named in the petition along with the District of Saanich and the province, has been dropped.
The District of Saanich is defending its position that the development permit was properly issued.
Brent Reems, director of legal services for the municipality, and Atwell have said previously they are unable to comment on the matter.
The proposed development by Kang and Gill Construction includes a grocery store, bank, pharmacy, coffee shop and possibly a medical clinic on the ground floor.
It will also include 91 condos and span 36,000 square feet over an underground parkade.
The developers hope to be able to have machines on the site in about three weeks to excavate for the planned 324 underground parking spaces, said architect Alan Lowe.
The development is expected to take about three years to complete.
The site’s one-storey buildings have been demolished, including the Tru Value Foods grocery store, which closed last year.
Prior to the Jan. 29 committee meeting when the development was approved, chief administrative officer Paul Thorkelsson advised councillors they were considering “a form and character development permit” and that the property was already zoned for the use, there were no variances requested and that the official community plan and other plans and permit guidelines had been considered.
Administrative staff at the meeting explained that the four-storey was acceptable under the plans.
