Judge turfs Town of Osoyoos case against Rattlesnake Canyon

The Town of Osoyoos' bid to have Rattlesnake Canyon's go-cart operations stopped has been thrown out of court.
In a 16-page Reason for Judgement The Honourable Mr. Justice Brooke dismissed the injunction sought by the town and ordered that the town pay the costs for Rattlesnake Canyon.
No dollar figures were available because according to the town's Director of Finance Jim Zakall that information could not be released without a formal Freedom of Information Request.
The Osoyoos Times made the FOI request Tuesday morning.
When asked directly about the costs, Mayor John Slater said he did not know the exact amount but did say he believed they were not more than $100,000.
In his judgement, Brooke essentially found the town's noise bylaw was invalid.
. . . There is, therefore, an element of indirectness to the plaintiff's (Town of Osoyoos) application and the defendent's response where the core issue is whether s. 32 of the noise control by-law is valid. I have concluded that it is not and that it is overboard and, in its effect, arbitrary and disproportionate., Brooke said in his Reason for Judgement.
The Town of Osoyoos took the case to the Supreme Court of B.C. last August seeking an injunction to force Rattesnake Canyon to stop operating a go-cart track until it had been issued a valid business licence that allowed the operation of the track.
The problems with the go-cart track at Rattlesnake Canyon started immediately after it was opened in 2003.
Rattlesnake Canyon originally applied to build the go-cart track in December of 2002.
A public meeting was held on March 3, 2003, where concerns about noise issues were raised.
Rattlesnake Canyon made changes in their application to deal with those concers, and on April 7 town council approved the go-track.
However, controversy started immediately after the track opened.
In the summer of 2003 24 tickets were issued for violation of the town's noise bylaw, while another 10 tickets were issued because the town claimed that Rattlesnake Canyon was operating without a valid business licence.
That claim was based on the fact that four lots rezoned by the town, where part of the go-cart track was built, were not included in the current business licence.
The town then amended the business licence to include those four lots and extended the licence to April 30, 2005.
On September 8, the town suspended that business licence for a period of one year.
Things seemed to be getting better as the busy 2004 tourist season approached.
In May, 2004, Rattlesnake Canyon, at the behest of the town, had an acoustics report done on the park.
Rattlesnake Canyon did $125,000 in improvements to the park based on that report.
However, Rattlesnake Canyon was turned down by the town when it asked for a resolution essentially saying the improvements fully met the requirements of the town's noise bylaw.
Rattlesnake Canyon continued to operate the entire summer without a business licence prior to the town seeking the injunction later in August.
In his Reasons for Judgement, Brooke brought up the issue of another go-cart track, the one at the Highland Inn, being in very close proximity to Rattlesnake Canyon.
. . . A salient fact is that some 200 metres distant from the defendent's go-cart operation was and is a second go-cart operation, which is also on the north side of Highway 97 at the Highland Inn.rnBrooke also said there wasn't, based on affidavits before the court, any real consensus in the community.
. . . Without adopting the fallacy of witness wagering if all of the affidavits are truthfull (as I assume they are), then there is no clear consensus within the 'neighborhood.'rnBrooke said the town did have the jurisdiction to enact a noise bylaw, but said the current bylaw was too broad.
. . . I accept that the plaintiff has the jurisdiction to enact a noise control by-law and that a measure of deference must be paid to the means employed by council . . .rn . . . I am, however, satisfied that the town has employed means in its noise by-law which are broader than necessary to accomplish its objective . . . This conclusion is demonstrated by comparing the operation of the go-cart track without objection approximately 200 meteres distance from the defendents's go-cart track to the similar operation of the defendent . . .rnSlater called the judgement kind of haywire, adding he didn't know if the town would appeal or not.
What is the point of having by-laws if you can't enforce them? Slater said.
As of last Monday, Slater said the town had still not received a report on the judgement from its lawyers, Lidstone, Young and Anderson, out of Kelowna.
We are a small town, said Slater. We just can't keep spending money on legal fees.rnSlater said the Union of B.C. Municipalities may be interested in pursuing the issue further because of its significance. However, that specific issue had not yet been addressed.
Slater also pointed to the fact that Rattlesnake Canyon had built a wall at the back of the go-cart track as another factor in determining whether or not the town would appeal.
Asked if he would have done things differently from the start, Slater said council really had no other choices.