A request from the Vancouver Island Motorsport Circuit for the Municipality of North Cowichan to issue a development permit for its expansion plans was turned down by council on Dec. 4.
Sean Hern, a partner in the Farris’ litigation group who spoke on behalf of the VIMC at the council meeting, made it clear that his client wanted the decision made right away after receiving a letter from North Cowichan’s director of planning Rob Conway stating the application was denied.
He said a decision of whether to issue a development permit is an assessment of the application in light of the municipality’s Official Community Plan.
“But this is not a land-use decision, as has been made in this case by the director of planning,” Hern said.
“To proceed otherwise is to exceed the statutory jurisdiction delegated in respect of development permit applications. There are many examples of the court’s enforcement of this constraint on municipal jurisdiction in relation to development permit applications.”
Second, Hern said the suggestion that the VIMC’s application may not comply with the proper zoning is arbitrary and irrational in light of the VIMC having been issued a development permit in 2015 for the adjacent lands under the same zoning.
As well, he said North Cowichan’s planning department repeatedly confirmed in writing to the VIMC that the zoning uses on the land where stage two is planned were consistent with both the zoning types on the property where stage one of the VIMC is constructed.
“Third, and alternatively, the planned use for the subject lands is not singular, but is a collection of a number of different uses, and even if North Cowichan were to be concerned that some of those uses may not be consistent with the zoning, many of the uses clearly are,” Hern said.
“Accordingly, the matter of whether the user operates in compliance with the zoning in the future is, at most, a matter of municipal enforcement and not a basis to deny the development permit application.”
Council decided on Oct. 4, following two marathon nights of public hearing, to deny rezoning at the VIMC property due to community concerns about noise, environmental impacts, and First Nations objections, prompting Conway’s rejection letter to the VIMC.
But North Cowichan Mayor Al Siebring has announced since then that he is exercising his power to ask council to walk back their decision not to approve the rezoning and have council reconsider its vote, revealing that turning down the rezoning has opened the municipality up to a possible $60 million liability.
That means another public hearing on the rezoning request is scheduled for Dec. 9 at 6 p.m. at the Cowichan Performing Arts Centre.
Speaking before Hern, Isabel Rimmer, president of the Sahtlam Neighbourhood Association that has been a primary opponent of the VIMC, said that while there is no doubt that some members of North Cowichan’s staff were aware of the expansion plans, it doesn’t mean they assured the VIMC that a development permit would be issued.
“I would suggest that no one on staff assured the VIMC it would get a permit to expand, as well as an amendment to the OCP,” she said.
“If there is evidence, give it. Other than that, it was just an understanding.”