BYLAW NO. 2323
May 10, 2022 Adoption Meeting
In 1989, thirty-three families purchased lots in Horstman Estates directly from Blackcomb Skiing Enterprises Ltd. They were sold with a clear and explicit promise: unlimited rights to nightly tourist rentals under the Resort's own "Warm Bed Policy." For the next three decades, that promise held. Owners built lives, invested in their properties, and for almost three decades operated their homes without disruption as nightly rentals, contributing to Whistler's tourism economy by offering the only chalet-style homes available to families and groups on Blackcomb Mountain and within walking distance of the village. Throughout that entire period they paid WRA commercial tourist accommodation fees and MRDT taxes to the RMOW.
Then, on a single evening in May 2022, it was taken away. Not through any court ruling. Not through a fully transparent public process. But through a bylaw adoption meeting in which municipal planning staff presented council with a version of events that was incomplete, contradictory, and demonstrably false, stripping Horstman Estates of tourist accommodation rights it had held for over three decades, making it the only properties within the entire Blackcomb Land Use Contract to be denied those rights in 43 years.
Council made their decision based on what staff presented to them. What staff did not present to them is documented in detail on this website.
The municipality is now spending what could be hundreds of thousands of taxpayer dollars in legal fees, with potentially millions in liability exposure, all while defending that decision, while their own staff gave council three compelling reasons to support the opposite outcome. All of this could have been resolved in one hour.
For 25 years, from 1993 to 2018, the Official Community Plan distinctly identified all 33 individual lots known as Horstman Estates as Commercial Accommodation and Substantial Tourist Accommodation, during which approximately a dozen homes were actively used for nightly rentals. Then, without any notice to owners or the public, they were quietly recategorized as residential only in the Official Community Plan replacement.
THIS IS HOW THEY DID IT.
Click any fact below to read the summary, detailed brief and transcript references.
On February 8, 2022, the RMOW sent a letter to all Horstman Estates owners formally launching the LUC termination process under Bylaw 2323.
At the time, four Horstman Estates properties were actively advertising and renting as tourist accommodation, paying commercial resort TA fees. Despite this, the letter made no reference whatsoever to tourist accommodation, the single most consequential issue for owners.
Owners had no reason to believe their tourist accommodation rights were at stake. They were given no warning and no opportunity to seek legal advice on this specific issue before the process advanced. This omission constitutes a breach of LGA Section 466 if TA was a permitted use, and denied owners their Section 533 non-conforming use protection if it was not.
Finding 1, Failure to Address Tourist Accommodation in Owner Notice
The February 8, 2022 notice letter described the LUC termination process in general terms: the provincial mandate, the proposed RS3 zoning, and the opportunity to comment. Nowhere in the letter, or public notice, was tourist accommodation mentioned.
Why this matters
- At the time, four Horstman Estates properties were actively renting nightly and paying commercial tourist accommodation fees to Tourism Whistler.
- The LUC termination process was the mechanism staff intended to use to permanently extinguish those rights, yet owners were given no notice of this intent.
- The Local Government Act requires that notice to property owners provide sufficient information to understand and respond to proposed changes. A termination that strips commercial accommodation rights without disclosing that intent fails this standard.
- This omission cannot have been inadvertent. The TA question dominated the public hearing submissions and the council Q&A at the May 10 meeting.
The February 8, 2022 notice letter sent to all Horstman Estates owners did not reference tourist accommodation, the central issue of the termination. This deprived owners of adequate notice and the ability to fully respond to the proposed bylaw before adoption.
Exhibit A, February 8, 2022 Owner Notice Letter
From the meeting transcript, May 10, 2022
MS. BEAUBIEN: The submissions related to seven key topics. First, was inclusion of maximum GFA in the proposed revised RS3 zone. The second, was the applicability of Part 5, Section 26, which respects GFA exclusions of the zoning bylaw. The third, was the ability to rebuild in the event of a total loss due to a fire. The fourth, was tourist accommodation as a permitted use in Horseman Estates. The fifth, was an active rezoning application. The sixth, was the discharge of the related covenant, and finally the seventh was a request for additional information.
Note: Tourist accommodation was the fourth of seven topics presented, confirming staff knew it was a central issue. Yet the February 8 owner notice letter did not mention it once.
During the May 10 presentation, staff cited the 1999 G20 Rezoning Policy as a comparator, implying that Horstman Estates could have gone through that same rezoning process to obtain tourist accommodation rights. It was a total red herring. It was legally impossible. This framing was fundamentally misleading.
The G20 Policy applied only to properties outside Land Use Contracts. Horstman Estates was inside the Blackcomb LUC. A Land Use Contract is a binding legal contract that cannot be amended by a 75% strata vote or rezoning, it requires agreement of all original parties. The G20 Policy mechanism could never legally have applied to Horstman Estates.
Council was misled into thinking Horstman had been considered under a comparable process, when it could not have been.
Finding 2, G20 Policy Presented as a Comparable Remedy When It Was Legally Inapplicable
- All 17 properties rezoned under G20 were outside the Blackcomb Land Use Contract.
- Horstman Estates was inside the LUC. The G20 Policy mechanism was legally inapplicable.
- A Land Use Contract cannot be amended by a 75% strata vote or any rezoning process, it requires agreement of all original parties.
- The four Blackcomb Benchlands properties cited as context for Horstman were in optioned lands designated for 'substantial tourist accommodation', a completely different category.
- All 17 properties lost their tourist accommodation rights because Bylaw 814 revoked those rights through its adoption. Those properties were non-LUC properties. Bylaw 814 was inapplicable to Horstman Estates, which remained governed by the Blackcomb Land Use Contract. The Snowridge Staff Report to Council 05-140 illustrates the corrective rezoning mechanism used to restore tourist accommodation rights where Bylaw 814 had revoked them. Bylaw 814 also had the public hearing requirement waived, reinforcing why the corrective mechanism was necessary for the affected non-LUC properties, but not for Horstman Estates.
The G20 Policy was legally inapplicable to Horstman Estates due to its status within the Blackcomb LUC. Its citation created a false impression that Horstman had been properly considered under a process designed for similar properties when it could never legally have applied.
Exhibit B, G20 Policy with list of rezoned properties including Snowridge
From the meeting transcript, May 10, 2022
MS. BEAUBIEN Staff also note the existence of tourist accommodation rezoning policy G20, which dates back to 1999. Under this policy Horseman Estates is not included in the blanket rezoning. One of the reasons for this is that there was no agreement within Horseman Estates regarding TA use. Staff also note that in the past the RMOW has received request to enforce against TA use in the Horseman Estates area.
Note: The G20 Policy could never legally have applied to Horstman Estates. Its citation as a comparable remedy was legally meaningless and nothing more than a red herring, creating a false impression that Horstman had been properly considered under a process that could never legally have applied to it.
Staff cited disagreement among Horstman Estates owners over tourist accommodation as a key reason why the property was not included in the 1999 G20 rezoning process.
What staff did not tell council: between 1997 and 1999, Horstman owners voted three consecutive times at AGMs on a motion to prohibit nightly rentals. The motion was defeated all three times. By October 4, 1999, Mike Kirkgaard had been formally advised in writing that the disagreement was resolved and the former strata president driving the effort was no longer on the strata council.
Kirkgaard said nothing about this in 2022.
Finding 3, Strata Disagreement Mischaracterized
- Between 1997 and 1999, owners voted three consecutive times on a motion to prohibit nightly rentals. The motion was defeated all three years.
- The effort was driven by a former strata president whose personal agenda was rejected by the membership three consecutive times.
- On October 4, 1999, Kirkgaard received a formal written letter confirming the disagreement had resolved, the motion had been defeated for the third year, and the former strata president was no longer on the strata council.
- Kirkgaard was therefore aware in 2022 that his characterization of ongoing disagreement was historically false.
Kirkgaard and Beaubien cited owner disagreement to justify non-inclusion in G20, without disclosing that this disagreement had been formally resolved by October 1999, a fact directly communicated to Kirkgaard in writing at the time.
Exhibit D, Letter to Mike Kirkegaard, October 4, 1999
From the meeting transcript, May 10, 2022
MS. BEAUBIEN Staff also note the existence of tourist accommodation rezoning policy G20, which dates back to 1999. Under this policy Horstman Estates is not included in the blanket rezoning. One of the reasons for this is that there was no agreement within Horstman Estates regarding TA use. Staff also note that in the past the RMOW has received request to enforce against TA use in the Horstman Estates area.
Beaubien told council that the RMOW had received requests to enforce against tourist accommodation use in Horstman Estates in 1999. This statement was technically accurate but deliberately incomplete.
What staff omitted: the RMOW engaged independent legal counsel to opine on enforcement. Two separate legal opinions concluded enforcement would likely be unsuccessful. The very language, "single residential building", that those opinions found not to preclude tourist accommodation was the same language staff used in 2022 to justify excluding TA from Horstman Estates.
Mike Kirkgaard was personally involved in obtaining both opinions and was fully aware of their conclusions.
Finding 4, Enforcement History Weaponized, Outcome Hidden
- The enforcement request arose from a civil action by five strata members against owner Alan Gelfand. RMOW retained independent legal counsel, costs shared equally with Mr. Gelfand on the condition both parties agreed to be bound to the opinion.
- Legal Opinion 1 concluded RMOW would likely be unsuccessful in obtaining injunctive relief. The term "single residential building" was expressly considered and found not to be determinative on the question of tourist accommodation.
- RMOW sought a second opinion. Legal Opinion 2 (Brian Taylor, September 27, 1999) reached the same conclusion: enforcement would likely be unsuccessful.
- Mike Kirkgaard was a party to both opinions and was fully aware of their inclusions and the agreement to honour the opinions, which he did until 2018.
- In 2022, staff cited "single residential building" as the primary basis for excluding TA, the exact same language those 1999 opinions had already found not to preclude TA.
- On July 1, 2024, 25 years later, RMOW issued a cease and desist against the Gelfand property, directly contradicting the position both parties agreed to abide by in 1999.
Staff told council enforcement had been requested against TA use in 1999. They did not tell council that two independent legal opinions concluded enforcement would likely be unsuccessful, using the same single residential building language staff now cited as the basis for excluding TA.
Exhibit E, Brian Taylor First Legal Opinion (May 6, 1999); Exhibit F, Brian Taylor Second Legal Opinion (September 27, 1999)
From the meeting transcript, May 10, 2022
MS. BEAUBIEN Staff also note the existence of tourist accommodation rezoning policy G20, which dates back to 1999, under this policy Horseman Estates is not included in the blanket rezoning. One of the reasons for this is that there was no agreement within Horseman Estates regarding TA use. Staff also note that in the past the ROW has received request to enforce against TA use in the Horseman Estates area.
Note: Beaubien discloses that enforcement was requested. She does not disclose that two independent legal opinions obtained by RMOW, both coordinated by Kirkgaard personally, concluded enforcement would likely be unsuccessful. The outcome of the enforcement inquiry was never mentioned.
Exhibit E, Brian Taylor First Legal Opinion (May 6, 1999). Exhibit F, Brian Taylor Second Legal Opinion (September 27, 1999). Both conclude enforcement against tourist accommodation use at Horstman Estates would likely be unsuccessful.
At timestamp 2:14:36, Councillor Jewett asked directly whether Horstman Estates had been paying tourist accommodation surcharges as most TA properties do. This was one of the most significant questions asked that evening.
At 2:14:40, Beaubien, who had been answering questions throughout the presentation, opted to walk away without saying a word, silently signalling to Kirkgaard to take the question. Kirkgaard deflected. He confirmed Horstman was designated resort lands and paid tourism fees, then launched into a general explanation of fee structures. Councillor Jewett was left confused however, accepted the non-answer.
What was concealed: since 1996, over a dozen Horstman Estates properties had paid commercial tourist accommodation fees to Tourism Whistler. Four were still assessed at TA commercial rates as of January 2022, the most recent assessment year at the time of the meeting. The RMOW had been collecting this revenue for 26 years while claiming TA was not a permitted use.
Finding 5, Non-Disclosure of Commercial TA Fee Payments
- Since 1996, over a dozen Horstman Estates properties had paid commercial tourist accommodation fees to Tourism Whistler and collected and forwarded MRDT back to RMOW.
- As of January 2022, four Horstman Estates properties were still assessed and paying at commercial accommodation rates, actively advertising and renting nightly.
- This directly contradicted staff's position that TA was not a permitted or recognized use. The municipality was receiving tax revenue from Horstman properties operating as tourist accommodation while claiming the use was not permitted.
- Kirkgaard's response at 2:14:52 confirmed only resort lands fees, not commercial TA fees, a deliberate distinction that left Councillor Jewett with a false impression.
Councillor Jewett's direct question about TA surcharge payments was not answered. Kirkgaard deflected to resort land fee structures without disclosing that over a dozen Horstman properties had paid commercial tourist accommodation fees to Tourism Whistler since 1996, with four still assessed at TA rates as of January 2022.
Exhibit G, Tourism Whistler Assessment record (2021)
From the meeting transcript, May 10, 2022
COUNCILLOR JEWETT Okay, and so Horseman Estates has not been paying tourism or surcharges as most TA's do?
MR. KIRKEGAARD Mayor and council, I believe that Horseman Estates is designated resort lands and they do pay tourism fees.
COUNCILLOR JEWETT Right, and so that confused me. So, they're paying Tourism Whistler Fees because they're resort lands, but they're not tourist accommodation.
MR. KIRKEGAARD There are a number of properties within the municipality that are designated resort lands and not all of them have the zoning to permit tourist accommodation within the fee structure of Tourism Whistler, there are distinctions between properties that do rent and that do not rent.
COUNCILLOR JEWETT Okay, I wasn't aware of that. Thank you very much.
, Later in the meeting ,
COUNCILLOR GRILLS I missed just the last part of what my Mr. [Kirkgaard] said that there's two levels of fees for TW and there's a base rate, and then if you occupy as a residence or you're not you commercially renting it out, which is the larger portion of the fees, so they may be paying the fee, but a smaller fee than say someone owning a condo in village.
COUNCILLOR JEWETT I'm in that situation where I live.
COUNCILLOR GRILLS There you go.
Note: Councillor Jewett asked a direct yes or no question. Kirkgaard answered a different question entirely, deflecting to resort lands fees rather than confirming whether Horstman properties were assessed at commercial tourist accommodation rates. Over a dozen Horstman properties had paid commercial TA fees since 1996. Four were still assessed at those rates as of January 2022. Council was never told and mislead to believe the opposite.
In response to Councillor Jackson's question about why identical LUC definitions would produce different tourist accommodation outcomes for single versus multiple residential buildings, Kirkgaard stated that multiple residential buildings had rental pool covenants, lobbies, and check-in facilities, implying this was what justified their TA status.
This was false. Of the 22 multiple residential properties within the Blackcomb LUC that have TA zoning, only 5 have rental pool covenants and check-in facilities or lobbies. The remaining 17 are structurally indistinguishable from Horstman Estates' single residential buildings.
Further undermining Kirkgaard's position, the first two multi-family developments within the Blackcomb LUC, The Gables and Cedar Hollow, were both developed under the original Blackcomb LUC which used identical wording for single and multiple residential definitions, word for word. Rental pool covenants did not even exist at that time. They were only introduced in the amended BLUC. If rental pool covenants and check-in facilities were truly the basis for TA rights, The Gables and Cedar Hollow could never have qualified either, yet both have held TA rights without challenge. Kirkgaard made no mention of this.
Council was given a false basis for differentiating the treatment of Horstman Estates from every other TA-zoned LUC property.
Furthermore, the term "dwelling units" as used in the LUC definition refers to construction use, not occupancy use. A building designed as a dwelling unit may still be used for tourist accommodation without changing its construction classification. Kirkgaard's distinction was therefore not only factually false but legally irrelevant.
Compounding this, both Staff Reports to Council, Report 17-057 and Report 22-045, stated that "dwelling units could be used for tourist accommodation when not being used for residential purposes," with no distinction made between single and multiple residential buildings.
Finding 6, Misleading Distinction Between Single and Multiple Residential
- Of 22 multiple residential properties in the Blackcomb LUC with TA zoning, only 5 have rental pool covenants and check-in facilities or lobbies.
- The remaining 17 have tourist accommodation rights without any such facilities, structurally and practically indistinguishable from Horstman Estates' single residential buildings.
- The first two multi-family developments in the Blackcomb LUC, The Gables (4510 Blackcomb Way) and Cedar Hollow (4701 Glacier Drive), were developed under the original BLUC, which used word-for-word identical definitions for single and multiple residential buildings. Critically, rental pool covenants did not yet exist under the original BLUC. They were only introduced in the amended BLUC. This means the very features Kirkgaard cited as justifying TA rights for multi-family properties were entirely absent when The Gables and Cedar Hollow received those rights. His argument collapses entirely when applied to the developments that established the precedent.
- The LUC definition for multiple residential buildings uses the word "may" for lobbies and check-in facilities, an optional condition, not a requirement. Kirkgaard presented them as universal and defining.
- The term "dwelling units" as used in the LUC definition refers to construction use, not occupancy use. A building designed as a dwelling unit may still be used for tourist accommodation without changing its construction classification. This distinction is critical and directly undermines Kirkgaard's rationale.
- Under the original BLUC, both the single residential and multiple residential building definitions used identical occupancy wording stating that the dwelling units were to be used for "seasonally and permanent occupancy." In the amended BLUC, the definitions were slightly modified to account for multiple dwelling units and, where applicable, rental pool covenants. However, those changes had no bearing on the actual permissibility of tourist accommodation use. The core occupancy wording remained materially the same and does not support the distinction advanced by Kirkgaard.
- Both Staff Reports to Council, Report 17-057 and Report 22-045, stated that "dwelling units could be used for tourist accommodation when not being used for residential purposes," with no distinction made between single and multiple residential buildings. Staff's own reports contradict their position at the May 10, 2022 meeting.
Kirkgaard's explanation that multiple residential buildings universally had rental pool covenants, lobbies and check-in facilities was false. Seventeen of 22 TA-zoned LUC properties had none of these. The actual definition uses permissive language, not mandatory requirements. Furthermore, the first two multi-family developments, The Gables and Cedar Hollow, received TA rights under the original BLUC before rental pool covenants even existed.
Exhibit H, LUC & Zoning Definitions; Exhibit I, Council Policy & Multi-Family Comparison in BLUC
From the meeting transcript, May 10, 2022
MR. KIRKEGAARD I'm trying to go down the question. I'd then just like to comment in terms of the distinction between single residential and multiple residential within the land use contract. There were also requirements for rental covenants for some of the multi-family properties with and requirements for lobbies, etcetera, which implied the tourist accommodation use so I just wanted to add that clarification as part of the distinction between single residential and multiple residential.
Note: Kirkgaard states that lobbies and check-in requirements "implied" tourist accommodation use for multi-residential properties. In fact, 17 of the 22 TA-zoned multi-residential LUC properties had no such facilities nor a rental pool covenant. The distinction Kirkgaard drew was false.
In the written Staff Report to Council and in Beaubien's presentation, the position was clear: Horstman Estates was not offered the G20 rezoning process.
During the Q&A portion of the same meeting, Kirkgaard stated the opposite, that Horstman Estates owners had the opportunity to participate in the G20 process but chose not to.
These are irreconcilable contradictory accounts of the same historical event, delivered by the same staff team in the same meeting. Council received no correction and no clarification.
Finding 7, Kirkgaard Contradicted His Own Staff Report
- The written Staff Report and Beaubien's presentation stated Horstman was not offered the G20 process.
- During Q&A, Kirkgaard stated that owners "opted not to participate" — implying they were offered the process and declined.
- These two accounts are irreconcilable. Either Horstman was not offered the process, or it was offered and owners declined. Both cannot be true.
- No correction or clarification was made by staff. Council was left with contradictory information and no means of resolving it.
The written Staff Report and Beaubien's presentation stated Horstman was not offered the G20 process. Kirkgaard then told council the opposite in the same meeting. These are irreconcilable accounts from the same staff team. No correction was made.
Exhibit J, Staff Report to Council 22-065; Exhibit K, OCP Bylaws 1021 & 2199 with Schedule A; Exhibit L, Council Policy G26 (TA)
From the meeting transcript, May 10, 2022
MS. BEAUBIEN Staff also note the existence of tourist accommodation rezoning policy G20, which dates back to 1999, under this policy Horseman Estates is not included in the blanket rezoning.
, Later in Q&A ,
MR. KIRKEGAARD There was no decision at that time by the strata to enter into that process.
COUNCILLOR JACKSON So, staff's suggestion that it would support a rezoning of that claim would be relevant to a number of properties as opposed to a whole strata?
MR. KIRKEGAARD Yeah, we believe that it would be preferable for the entire subdivision to have consistent zoning then for one individual unit to be spot zoned for that use. When we did the zoning in 1999 all but one of the properties, one of the prerequisites of that process was for there to be a 75 percent affirmative vote of the strata in support of the application, and then the municipality initiated those zonings and that was to address the potential for conflict within the strata associated with it.
Note: Beaubien states Horstman "is not included", implying it was excluded from the process. Kirkgaard's answer implies owners could have applied through a 75% strata vote process, implying they had the option and did not take it. Council received both accounts in the same meeting with no correction.
Exhibit J, Staff Report to Council 22-065. Exhibit K, OCP Bylaws 1021 & 2199 with Schedule A. Exhibit L, Council Policy G26 (TA). Compare the written report with Kirkegaard's verbal statements in Q&A.
Councillor Jackson noted that Horstman Estates Lots 5 and 10 were listed in Schedule 3 of Council Policy G26 (2017) as tourist accommodation properties without a rental pool. This was a significant observation, the municipality's own 2017 Tourist Accommodation G26 Policy had recognized Horstman Estates as tourist accommodation.
Beaubien responded by calling this listing an "error" that would be corrected.
This was false. At the time of the 2017 policy, the Official Community Plan (Bylaw 1021) clearly designated Horstman Estates as commercial accommodation / substantial tourist accommodation in Schedules C & Q of OCP "Schedule A". The listing of Lots 5 and 10 in Schedule 3 was entirely consistent with the OCP at that time, and those same lots were paying commercial TA fees. There was no error. The "error" was manufactured in 2022 to explain away inconvenient evidence.
Finding 8, Schedule 3 Listing Called an Error, It Was Not (Done simultaneously to support Tourist Accommodation Bylaw 2142)
- In 2017, Council Policy G26 (Tourist Accommodation Bylaw 2142) was enacted under Kirkgaard's stewardship. Schedule 3 listed tourist accommodation dwelling units without a rental pool. Horstman Estates Lots 5 and 10 were expressly included.
- At the time, OCP Bylaw 1021 designated Horstman Estates as commercial accommodation and substantial tourist accommodation on all their schedules. The Schedule 3 listing was consistent with the OCP, not an error.
- Those same lots were paying commercial tourist accommodation fees to Tourism Whistler at the time of the 2017 policy.
- Beaubien's claim that the listing was an "error" was made without any documentation of when the "error" was identified, who identified it, or what process was followed to address it.
Beaubien called the inclusion of Horstman Estates Lots 5 and 10 in Schedule 3 an "error." At the time of the 2017 policy, the OCP designated Horstman as commercial accommodation and those lots were paying TA fees. The claim of error was false and unsupported by any documentation.
Exhibit M, OCP Bylaw 1021 Schedule A; Exhibit G, Tourism Whistler Assessment Records; Exhibit L, Council Policy G26 (TA)
From the meeting transcript, May 10, 2022
COUNCILLOR JACKSON Yeah, I guess -- well, there was a report that I think you were the author of in the 2017 council without doing a review of all the tourist accommodation and you looked at a number of different categories and the purpose of them and why you support property of being available for tourist accommodation, and in it there's a section called Tourist Accommodation Rental Fee, and there's a summary of properties and there's Schedule 3, Tourist Accommodation within their region board so not a part of the land use contract. There's a pile of them on the it describes in one of them, but it also has Horseman Estates. There's one of them, but it's limited to, it looks like two properties. How do we reconcile that that we have a report saying that it's tourist accommodation and it's in our schedule, but it's not zoned?
MS. BEAUBIEN Yes, thanks for your question, Councillor Jackson. That was subsequently recognized to be an error within the council policy and at some point in the future amendments to that council policy will be brought forward to address that and other issues that staff have noted. Staff have not issued any -- since that those bylaws as well as the council policy came into effect. Staff have not -- the municipality has not issued any tourist accommodation business licenses to any properties within the Horseman Estates area.
Note: Beaubien calls the Schedule 3 listing an "error" without any documentation, without identifying when the error was discovered, and without acknowledging that at the time of the 2017 policy the OCP designated Horstman as commercial accommodation and those lots were paying TA fees. There was no error, the listing was entirely consistent with the OCP as it stood in 2017.
Exhibit M, OCP Bylaw 1021 Schedule A showing commercial accommodation designation for Horstman Estates at the time of the 2017 policy. Exhibit G, Tourism Whistler Assessment Records confirming TA fee payments at the time. Exhibit L, Council Policy G26 (TA) showing the Schedule 3 listing and the error claim.
From 1982 through to the 2018 OCP consolidation, spanning 36 years, every Official Community Plan designated Horstman Estates lands as commercial accommodation and or substantial tourist accommodation on all land use schedules, identical to every other property within the Blackcomb Land Use Contract (Benchlands).
In 2018, under the oversight of Kirkgaard and Beaubien, Schedule A was quietly replaced during the OCP schedules consolidation to remove Horstman Estates' commercial accommodation / TA designation. No public notice was given. No owners were notified. No community engagement process was followed. No documentation of this change is on file.
By contrast, three comparable properties underwent formal Schedule A amendment processes during the same period, with proper notice, documentation, and community engagement. In 2022, staff then cited OCP consistency as justification for the termination, consistency they had secretly engineered four years earlier.
Finding 9, The 2018 OCP Schedule "A" Replacement: No Notice, No Process, No Record
- Every OCP from 1982 to 2018, 36 years, designated Horstman Estates as "Tourist Commercial Accommodation", "Commercial Accommodation", and "substantial Tourist Accommodation" on all their schedules.
- During the 2018 OCP consolidation of Schedule "A", the OCP replacement Schedule "A" substituted Horstman Estates’ prior tourist accommodation designation with a residential designation, without public notice, owner notification, community engagement, or documentation, and without expressly disclosing that an existing tourist accommodation designation was being removed.
- Three comparable properties, Prison Lands, 5298 Alta Way, and 2077 Garibaldi Way, underwent formal Schedule A amendment processes during the same period, with proper notice and documentation.
- In 2022, Staff Report 22-046 stated the proposed termination bylaw was "consistent with the Official Community Plan Schedule A." This statement was technically accurate only because Kirkgaard and Beaubien had quietly removed the designation in 2018 without due process.
The commercial accommodation designation for Horstman Estates was removed from OCP Schedule A in 2018 without notice, documentation, or due process. Staff then cited consistency with Schedule A as justification for the 2022 termination. Three comparable properties underwent proper formal amendment processes during the same period.
Exhibit K, OCP Bylaw 1021 Schedule A (Sub Schedules C & Q); OCP Bylaw 2199 Consolidated Schedule A; Schedule A Amendment Rules
At the April 19, 2022 public hearing, owner Alan Gelfand spoke twice. In his second submission, he expressly stated that adoption of Bylaw 2323 as proposed removing TA rights, would devalue Horstman Estate owners' property values.
The Local Government Act s. 465(5) requires staff to provide council with a complete and accurate summary of all public hearing submissions when presenting a bylaw for third reading and adoption. Report 22-065 did not include, summarize, or address Mr. Gelfand's property devaluation warnings as a consequence of TA removal.
This meant council voted to adopt Bylaw 2323 without being aware that a substantive legal challenge to the bylaw's validity had been raised at the public hearing, the most significant legal submission made throughout the entire process.
Finding 10, Public Hearing Summary Omitted Property Devaluation Submission
- The Local Government Act, section 465(5), requires a written report of all public hearing submissions to be prepared and maintained as a public record.
- Alan Gelfand's submission that Bylaw 2323 would cause property devaluation for Horstman Estates was the most legally significant submission made at the April 19 public hearing.
- Report 22-065 acknowledged that tourist accommodation was discussed at the public hearing but did not include, summarize, or address the property devaluation argument.
- Council therefore voted to adopt the bylaw without knowing a formal legal challenge to its validity had been raised.
- Had the submission been disclosed, council would have been put on notice that adoption of the bylaw carried significant legal risk. The decision to adopt may well have been different.
Report 22-065's summary of public hearing submissions omitted Mr. Gelfand's express submission that adoption of Bylaw 2323 would cause property devaluation and materially reduce Horstman Estates property values. This omission violated the Local Government Act's summary requirements and deprived council of material information at the moment of adoption.
Exhibit N, Public Hearing Minutes; Exhibit O, Summary of Public Hearing Submissions; Exhibit J, Report 22-065
Note: Although Alan Gelfand raised the property devaluation issue at the April 19 public hearing, Council was not re-informed or reminded of that submission in the public hearing submission summary presented at adoption of Bylaw 2323. This submission was required by the Local Government Act Section 465(5) to be summarized in the staff report. It was not. The property devaluation issue was arguably the most critical point of the entire meeting. Stripping tourist accommodation rights from properties that were sold, marketed and taxed as such fails the like-for-like equivalency requirement mandated under the provincial Land Use Contract termination process, leaving owners with materially less than what they were legally entitled to receive.
Exhibit N, Public Hearing Minutes (April 19, 2022) containing Mr. Gelfand's verbal submission warning of property devaluation. Exhibit O, Summary of Public Hearing Submissions showing that submission was omitted. Exhibit J, Staff Report 22-065 showing the omission from the required summary.