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B.C. Supreme Court sides with West Van in $5.3M waterfront property dispute

District, which appropriated lot "for public use" in 2015, will not have to pay higher amount previous owner demanded

It’s normally the market that decides how much a hot waterfront property goes for but in the case of 1454 Argyle Ave. in Ambleside, it was B.C. Supreme Court.

The District of West Vancouver expropriated the property in September 2015 “for public use as part of a historic acquisition plan for waterfront homes.”

In exchange for the lot and its 2,400-square-foot, 73-year-old house, the district gave the homeowner, Marilyn Nye-Islam, $5.3 million, based on an appraisal.

Nye-Islam, however, hired her own appraiser who determined the land was worth $8 million, “for eventual assembly with the properties of two neighbours to the east, and rezoning to permit multi-residential development into a four-storey six-unit luxury condominium,” according to the judge’s ruling.

Under the law, the government must pay market value of the expropriated land based on its highest and best use at the date of expropriation, plus reasonable damages for disturbance.

The district’s lawyer, however, argued that would not likely have been rezoned for luxury condos.

The case offers a window into the history of the past planning decisions of West Vancouver council and staff.

Nye-Islam based her argument on a number of historic planning documents following the 1958 West Vancouver community plan, which foresaw the creation of a new “apartment zone” in Ambleside. That plan gave rise to many of the condos and apartments that would come to be built in Ambleside.

But the court found later community plans shrunk down the apartment zone, excluding the lot Nye-Islam owned.

“The mere fact that rezoning was at one point recommended for the general area in which Ms. Nye-Islam’s property is located, does not lead to the conclusion that it was reasonably expected on September 2, 2015,” the judge wrote. “The district planners’ recommendation was never completely adopted by council even for properties in the area about which there was no question of future acquisition by the district. Only 51.8 acres of the recommended 92.4 were rezoned for multi-family development in the 1959 and 1961 rezoning bylaws.”

When the next planning process came about in the late 1970s, the public’s and council’s appetite for change in the area had waned and the direction of the OCP was to “permit only slow, controlled growth.”

“Residents feel excessive growth will spoil the rural, parklike character of the community. They want West Vancouver to ‘remain like it is,’” the 1980 community plan stated.

“When examined in its entirety, the historical evidence about the district’s plans and attitudes about rezoning the area in which Ms. Nye-Islam’s property is located is at best mixed…,” the ruling states. “Thus, despite Ms. Nye-Islam’s able argument, there is insufficient evidence to conclude on a balance of probabilities that … rezoning of Ms. Nye-Islam’s property for multi-residential use was ever anything more than a mere possibility”

Nye-Islam also argued the $5.3 million was a lowball amount for the land when zoned for single-family residential. But the judge disagreed with the methodology used by Nye-Islam’s appraiser, including the neighbourhoods he used for comparable sales and omitting the presence of the CN rail line from his assessment.

“(His) use of comparables in Kitsilano was not helpful. All experts agreed that Kitsilano is a more desirable neighbourhood to Ambleside,” the judge wrote.

Today the lot is vacant, flanked by another home the district intends to purchase and a community garden. Eventually, it will be incorporated into the revitalization plans for Ambleside.