By Ahmad Hathout
A landowner is asking a British Columbia court to scrap a right-of-way that gives Rogers the authority to build a 115-foot cell tower because it says the term “telecommunications facility” in the contract it inherited is vague and provides no certainty as to the size of the tower Rogers intended to build.
In September 2024, Surrey-based glazing and aluminum company Alummen Holdings Inc. (dba Vision West Aluminum) purchased from CPO Enterprises Ltd. the property located in the Gloucester Industrial Park in Langley. With the purchase came a statutory right-of-way (SROW) registered to the title of the property that laid out agreed terms that CPO had with Rogers on the building of telecommunications facilities, which was slated to begin in May this year, according to court documents.
But Alummen said in its petition to the Supreme Court of British Columbia in April that the term “telecommunications facility” in the SROW “gives no clear indication of what could be built, would be built, or even what CPO and Rogers in fact agreed on.
“In other words, the SROW seems to contemplate that anything from a phone booth to a thirty story office building (the latter of which could conceivably be a facility or other thing used in connection with telecommunications) might be capable of being built within the right of way area,” Alummen said, adding the SROW did not prohibit Rogers from “changing its mind” of what it may elect to build.
“Today it may wish to build the Proposed Tower, tomorrow it may wish to double its size,” it continues. “The day after, it may simply elect to build a store on which it might sell cell phones. Alummen is at the whims of RCI with no recourse to be hand.”
Alummen claims that the preliminary construction documents were not attached to the SROW prior to its purchase of the property and that the construction of the proposed tower is not identified in the SROW – except for one reference to a “tower” in one section.
Failing that argument, the company says the proposed build is obsolete because the network coverage in and around the area of the property is “solid,” Alummen claims, citing the cable company’s website. And if the court doesn’t accept that, then it is recommending that instead of a 115-foot tower, Rogers can build some other telecom facility that doesn’t exceed the building height requirements allowed by the township – substantially shorter than 115 feet.
But Rogers said in response to the petition that the SROW “expressly contemplates a tower,” that it boxes Rogers into a fenced area that cannot easily be expanded, and that Alummen, which it claims knew about the build documents, is trying to “avoid the consequences of its failure to conduct due diligence before purchasing the lands and premises.”
Rogers claims that CPO told it that Alummen knew of the SROW as of February 2024 and was “on board.” Despite that claim, about a week after closing, Rogers alleges that Alummen informed it that it would look to terminate the SROW because of the negative impact such a tower would have on its revenues.
“It is unclear what due diligence, if any, Alummen conducted either prior to this point, or before the closing on or around September 4, 2024,” Rogers said. “Alummen did not contact Rogers to inquire as to its plans.”
Rogers said it began a search for the appropriate site in this area since 2017 and secured the SROW in 2023. It said it has spent two years getting the requisite regulatory approvals, including from the Township of Langley, for the tower. It added that if it is forced to look for a different site, it would require an additional three years and would have to sink “substantial additional cost” in excess of $769,000.
Rogers is telling the court that it should not try to “remedy buyer’s remorse.”
In a statement, a Rogers spokesperson told Cartt: “We are committed to delivering a reliable, consistent wireless experience and are looking to enhance our network in Vancouver’s lower mainland to provide more seamless coverage for residents, businesses and emergency responders.”
Google Maps shot of the property in question
