Before construction, shown here, was started on phase one of the Vancouver Island Motorsport Circuit, assurances were sought and given that zoning of the facility wouldn’t be a problem. (Citizen file)

Before construction, shown here, was started on phase one of the Vancouver Island Motorsport Circuit, assurances were sought and given that zoning of the facility wouldn’t be a problem. (Citizen file)

VIMC says North Cowichan backed out of “assurances”

Correspondence indicates promises were made

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.

RELATED STORY: $50M LIABILITY WORRY HAS NORTH COWICHAN MAYOR ASKING FOR MOTORSPORT DO-OVER

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.

RELATED STORY: FRACTIOUS TWO-DAY HEARING ENDS WITH A NO FOR COWICHAN MOTORSPORT EXPANSION

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.

RELATED STORY: NOISE REPORTS ON COWICHAN MOTORSPORT CIRCUIT TAKE AIM AT EACH OTHER

“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.



robert.barron@cowichanvalleycitizen.com

Like us on Facebook and follow us on Twitter

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Moira Mercer spent her summer riding her e-bike around Cowichan Lake and beyond, collecting any empties she found along the way. (Submitted)
Lake Cowichan 2020 in review — conclusion

What were your top stories from 2020?

Staff meetings can be difficult when everyone has his own agenda. (Mary Lowther photo)
Mary Lowther column: Garden additions at request of staff

I’ll sow the catnip in flats on the seed table inside

Sarah Simpson
Sarah Simpson column: Snowballs fights and dead spiders

Even if it doesn’t end up how we hope, it’s the trying that matters most.

Cowichan Tribes members line up at a drive-up clinic on Wednesday, Jan. 13 to receive the first doses of the COVID-19 vaccine in the region. (Kevin Rothbauer/Citizen)
BCAFN condems racism against Cowichan Tribes after COVID-19 outbreak

“Any one of us could do everything right and still catch the virus”: Regional Chief Terry Teegee.

Keith the curious kitten is seen on Nov. 4, 2020 at the Chilliwack SPCA. Friday, Jan. 22, 2021 is Answer Your Cat’s Questions Day. (Jenna Hauck/ Chilliwack Progress file)
Unofficial holidays: Here’s what people are celebrating for the week of Jan. 17 to 23

Answer Your Cat’s Questions Day, Pie Day and International Sweatpants Day are all coming up this week

(Phil McLachlan - Capital News)
‘Targeted’ shooting in Coquitlam leaves woman in hospital

The woman suffered non-life threatening injuries in what police believe to be a targeted shooting Saturday morning

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

JaHyung Lee, “Canada’s oldest senior” at 110 years old, received his first dose of the COVID-19 vaccine on Thursday, Jan. 14, 2021. He lives at Amenida Seniors Community in Newton. (Submitted photo: Amenida Seniors Community)
A unique-looking deer has been visiting a Nanoose Bay property with its mother. (Frieda Van der Ree photo)
A deer with 3 ears? Unique animal routinely visits B.C. property

Experts say interesting look may be result of an injury rather than an odd birth defect

Standardized foundation skills assessment tests in B.C. schools will be going ahead later than usual, from Feb. 16 to March 12 for students in Grades 4 and 7. (Black Press Media file photo)
B.C. teachers say COVID-affected school year perfect time to end standardized tests

Foundational skills testing of Grade 4 and 7 students planned for February ad March

Sooke’s Jim Bottomley is among a handful of futurists based in Canada. “I want to help people understand the future of humanity.” (Aaron Guillen - Sooke News Mirror)
No crystal ball: B.C. man reveals how he makes his living predicting the future

63-year-old has worked analytical magic for politicians, car brands, and cosmetic companies

Terry David Mulligan. (Submitted photo)
Podcast: Interview with longtime actor/broadcaster and B.C. resident Terry David Mulligan

Podcast: Talk includes TDM’s RCMP career, radio, TV, wine, Janis Joplin and much more

A still from surveillance footage showing a confrontation in the entranceway at Dolly’s Gym on Nicol Street on Friday morning. (Image submitted)
Troublemaker in Nanaimo fails at fraud attempt, slams door on business owner’s foot

VIDEO: Suspect causes pain and damage in incident downtown Friday morning

Most Read