Correspondence between the Municipality of North Cowichan and the Vancouver Island Motor Circuit lays out VIMC’s case if it sues the municipality.
As early as a letter from Dave Devana, North Cowichan’s former CAO, dated Nov. 12, 2013, the municipality assured VIMC that zoning of the property allowed for the proposed facility.
“While not specifically listed as permitted use under the Zoning Bylaw 2950, it is the Municipality’s position that the proposed ‘Recreational Testing Facility’ would be considered a permitted use under the definitions of ‘Recreational Facility’ (C8) and ‘Industrial Use’ (I2) so this use is permitted on any portion of the subject property,” Devana wrote.
In a later letter to the municipality from the VMIC’s Peter Trzewik, dated Nov. 4, 2015, Trzewik noted that the property is split zoned, and the facility’s design would have the driving track extending across both the area zoned commercial/recreational and the area zoned industrial.
Trzewik said the VIMC was seeking “further comfort” that the activities proposed for the vehicle testing and driver training facilities were compliant with local zoning.
Trzewik listed eight proposed uses for the property, including driving programs of up to 100 cars a day in different areas of the facility, vehicles driving the track with the goal to achieve and improve “fast-lap” times, and working on cars to improve their lap times.
Devana replied that North Cowichan confirmed that the eight activities the VIMC were proposing at the site are “consistent with a vehicle testing facility” and are permitted in both zones.
With assurances given by North Cowichan, the VIMC spent more than $37 million to engineer and build phase one of the project, which included the motor vehicle circuit and a clubhouse, on an 18.74-hectare site.
The VIMC then applied for rezoning for the approximately $37-million phase two of the project on an adjacent 42.47 hectare site, which would include a new five-kilometre paved motor vehicle circuit, an off-road motor vehicle circuit, a new clubhouse and buildings for maintaining, repairing and storing motor vehicles. The reason cited for the rezoning request, which was not strictly necessary given previous assurances that the uses were compliant with the existing zoning, instead of a simple application for a development permit, was that a rezoning would put to bed once and for all any question of the permitted land use.
But following two marathon nights of public hearing last month, North Cowichan’s council decided to deny the rezoning application for phase two from the VIMC due to community concerns about noise, environmental impacts, and First Nations objections.
Subsequently, North Cowichan’s director of planning and development Rob Conway denied a development permit for phase two, saying it was inconsistent with the zoning.
However, North Cowichan Mayor Al Siebring has since announced 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 the possibility of a $50 million liability.
The liability was spelled out in correspondence North Cowichan received from the VIMC’s lawyers, Hutchison Oss-Cech Marlatt Barristers & Solicitors, soon after the rezoning application was rejected.
It stated that when the VIMC bought the property from the municipality in 2016, it was based on the written assurances from North Cowichan, without any disclaimers, that the zoning for the intended uses “was appropriate”.
“My client relied on those assurances in purchasing the property,” the law firm said.
“Furthermore, based on these assurances, my client applied for and received a development permit and building permits. It then invested over $37 million to construct phase one of the facility. It did so fully intending and expecting to build phase two on the adjacent lands.”
The letter from the law firm said that in 2017, North Cowichan asked the VIMC to apply to rezone the properties under one comprehensive bylaw in the belief that the rezoning would provide greater clarity and establish operating rules for the circuit to provide North Cowichan and the public certainty in that regard.
“Given its good relationship with North Cowichan and most of the community, my client, in good faith, agreed,” the law firm said.
“My client has issued contracts, booked clients and has mobilized equipment to the site to commence construction of phase two based on the issuance of a development permit.”
The letter said that if a development permit is refused or some other action be taken to interfere with VIMC’s lawful rights to establish and operate its business, the VIMC will “pursue all legal remedies available”.
“In the circumstances, having invested so much time and money in reliance on the municipality’s assurances and conduct to date, it will be left with no other choice,” the letter concluded.