Parts of West Vancouver property left to district to create a park can be sold, rules B.C. Supreme Court
A ruling in B.C. Supreme Court gives the green light to the District of West Vancouver to carve up a property left to it in trust in 1990 and use proceeds to expand Ambleside Park.
The ruling vindicates the District of West Vancouver after the province's attorney general said it was failing in its duty to protect the verdant property and pushing beyond the limits of what it had promised to do with the land.
A West Vancouver couple, Pearley and Clara Brissenden, lived on a 2.4 acre property at 2519 Rosebery Avenue near the Upper Levels Highway, which apart from their house, was largely undeveloped and covered with mature, second-growth forest.
Pearley Brissenden died before his wife, but when she passed away in 1990, the property was left to the District of West Vancouver in trust to be developed into a neighbourhood park that would preserve much of the forest.
The district did very little with the property, other than rent it out to a caretaker, which brought in nearly half a million dollars in rent until 2018 when the province's attorney general urged it to do more to adhere to the terms of the trust.
The AG's criticism of the district included bringing a lawsuit against it which argued it rented out the donated property for profit instead of creating promised park.
In July 2018, the district formally dedicated the northern portion of the Brissenden property as a park, then later that year demolished the house and created walking trails.
But at the same time, the district was making plans to break parts of the property into lots that could be sold at a profit. That would enable it to purchase two properties it had wanted to buy since the 1970s along Argyle Avenue to expand the popular oceanfront Ambleside Park. The expansion would be called the Brissenden Waterfront Park.
The district would also still preserve parts of the Brisseden property as a neighbourhood park.
The district argued that although it wanted to alter how the Brissendens' property would be used, the plans still adhered to the couple's intent which was to add park space to the district for the benefit of residents.
In his ruling, Justice Peter Edelmann agreed.
"It is a well-documented plan that has been subject to extensive study and consultation, taking into consideration the other park space available to residents in the various parts of the district," he wrote. "I accept that the proposed plan is in the best interests of the district and its residents."
The District of West Vancouver provided letters to the court from five former law partners of Pearley Brissenden who stated they knew the couple well and said that they would have been supportive of the amended plan for their property.
Edelmann set out conditions in the ruling to allow the district a variation under a section of the Community Charter.It includes allowing the district to subdivide and dispose of three proposed residential lots on the southern portion of the property as long as the lots have a tree protection covenant.
There would also be a covenant over one of the three lots for a walking trail connecting the remaining portion of the Brissenden property to Rosebery Avenue.
The district can use the proceeds of the sale of the lots to fund the acquisition of two remaining privately owned lots on Argyle Avenue to be named Brissenden Waterfront Park.
