The Vancouver Island Motorsport Circuit has announced it no longer intends to proceed with its application for its controversial expansion plans.
In a letter to the Municipality of North Cowichan received on Friday, Sean Hern, a partner in the Farris’ litigation group that represents the VIMC, said the Circuit has chosen instead to proceed “in accordance with its legal and equitable rights” on the issue.
Hern said the VIMC also does not plan to attend the public hearing on Monday to reconsider council’s decision in October not to rezone the Circuit’s property on Highway 18.
He said the VIMC made that decision after council decided on Dec. 4 not to issue a development permit for the expansion.
“VIMC’s perspective is that in denying the development permit, the municipality’s about-face is complete and legal processes will necessarily follow,” Hern said in the letter.
“While it seeks remedies and compensation in the courts for its substantial losses, the VIMC will proceed to mitigate its losses, as it must, by extracting whatever value it can from alternate uses of its land.”
North Cowichan Mayor Al Siebring said Monday’s public hearing will go ahead regardless of the VIMC’s decision not to proceed with its expansion application or attend the hearing.
He said that according to Bylaw 3761, because the rezoning application is now in-stream and under consideration, it “belongs” to council, and as such, third reading will have be reconsidered.
“Further, the public hearing is a procedural requirement that must be undertaken before council can vote on that reconsideration,” Siebring said.
“The fact that the VIMC has withdrawn the rezoning application does not mean that council does not need to reconsider it. The public hearing allows the public an opportunity to provide input on the ‘new information’, in regards to the potential lawsuit and its financial implications, before council reconsiders [the rezoning request]. Council is aware that the VIMC has withdrawn its application and commitments, and council members may consider that fact when third reading of the bylaw is reconsidered.”
The VIMC’s $36-million expansion was proposed to be built north of the existing 18.74-hectare site on Highway 18 where the motor vehicle circuit and clubhouse are currently situated.
Phase-two of the facility on a 42.47 hectare site was proposed to 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.
Council decided on Oct. 4, following two marathon nights of public hearing, to deny the rezoning due to community concerns about noise, environmental impacts, and First Nations objections.
But Siebring announced afterwards that he was 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.
In his letter to North Cowichan, Hern said that with Siebring’s decision to have council reconsider its decision to deny the zoning requests for phase two and hold another public hearing, some councillors may take the view that there is “new information” in the fact that the VIMC is likely to initiate a lawsuit over the issue.
“A potential lawsuit, however, is not new information to council,” he said.
“The likelihood of a lawsuit in such a circumstance and the potential liability for the municipality has long been known to council and to municipal staff, and has no doubt been the subject of extensive legal advice.”
Hern said potentially new information for council to consider might have resulted from the municipality’s recent discussions with Cowichan Tribes.
He said that the VIMC discussed the circuit’s expansion with Cowichan Tribes on a number of occasions and the First Nation had not previously expressed opposition to the project.
Hern said the VIMC was surprised to learn on Oct. 2 that the municipality had separately solicited the views of Cowichan Tribes on the rezoning, and the Circuit later received a letter from the First Nation that made accommodation-type requests if phase two were to proceed.
“Those requests prompted the mayor to seek some adjustments in the covenants and commitments from the VIMC in the rezoning application, but in the end the rezoning was rejected,” he said.
“Since then, the VIMC learned that the mayor and perhaps some other council members had been meeting, or attempting to meet, with the Cowichan Tribes.”
He said that, presumably, those meetings involved further accommodation-type measures with the First Nation as part of the rezoning conditions.
Hern said that while the VIMC was interested in discussing accommodation measures with the Cowichan Tribes, and reached out to the band for that purpose on two additional occasions since the rezoning application was refused, the VIMC has not had the opportunity to consider any specific commitments, has had no response to its meeting requests, and has heard nothing further from the municipality.
“Accordingly, there is no new information to discuss in relation to Cowichan Tribes’ position on the rezoning application,” Hern said.
“On. Dec. 4, council upheld…the denial of the VIMC’s development permit application on zoning grounds. In doing so, council provided no analysis or explanation, and did not even ask to hear staff’s report on the matter.”