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

Holly the stuffed Rottweiler has been missing from the front of Lucky Dog U-Bath since Feb. 24. (Submitted photo)
Holly the stuffed Rottweiler is missing from Duncan shop

Toy dog missing from front of Lucky Dog U-Bath since Feb.24

Martha Jane McHardy displays her knitwear in one of the windows at Imagine That! in Duncan this month. (Submitted)
Arts and Entertainment column: Lots to see in Duncan in March

Funding success, painters show, folk art, tell your COVID story

The Kinsol Trestle in Shawnigan Lake is a sight to behold. Funding for the expansion of the Shawnigan Museum celebrates its 100th anniversary. (Citizen file)
Shawnigan Museum expansion gets $480,000

Funds from Government of Canada Legacy Fund - Building Communities through Arts and Heritage program

A Cowichan Valley mom is wondering why masks haven’t been mandated for elementary schools. (Metro Creative photo)
Cowichan Valley mom frustrated by lack of mask mandate for elementary students

“Do we want to wait until we end up like Fraser Health?”

Clockwise from top left: Malahat First Nation Chief George Harry and councillors Steve Henry and Cindy Harry address community members in a video posted to YouTube on Wednesday, March 3, 2021. (Screenshot)
Malahat Nation confirms first two cases of COVID-19

Community has been under stay-at-home order since Jan. 7

B.C. Health Minister Adrian Dix and provincial health officer Dr. Bonnie Henry head for the B.C. legislature press theatre to give a daily update on the COVID-19 pandemic, April 6, 2020. (B.C. government)
B.C. nears 300,000 COVID-19 vaccinations, essential workers next

564 new cases, four deaths, no new outbreaks Thursday

Walter Gretzky father of hockey hall-of-famer Wayne Gretzky waves to fans as the Buffalo Sabres play against the Toronto Maple Leafs during third period NHL hockey action in Toronto on Tuesday, Jan. 17, 2017. THE CANADIAN PRESS/Nathan Denette
Walter Gretzky, father of the Great One, dies at 82

Canada’s hockey dad had battled Parkinson’s disease and other health issues

Municipal Affairs Minister Josie Osborne speaks in the B.C. legislature, March 4, 2021. (Hansard TV)
B.C. Liberals, NDP sing in harmony on local election reforms

Bill regulates paid canvassers, allows people in condo buildings

The intersection of Melrose Street and Third Avenue. (ELENA RARDON / ALBERNI VALLEY NEWS)
Suspect in custody after two pedestrians struck in Port Alberni hit and run

RCMP asking for video footage, credit witnesses for quick arrest

(National Emergency Management Agency)
No tsunami risk to B.C. from powerful New Zealand earthquake: officials

An 8.1 magnitude earthquake shook the north of New Zealand Thursday morning

Comox Valley RCMP had access to 20 Street blocked off between Cousins and Choquette avenues as they conducted a raid of a house on the block. Photo by Terry Farrell
Comox Valley RCMP raid Courtenay problem house, several arrests made

Comox Valley RCMP conducted a raid of a problem house on 20th… Continue reading

(AP Photo/Richard Vogel, File)
Pandemic stress, isolation key factors as to why Canadians turned to cannabis, alcohol

Study found that isolation played key role in Canadians’ substance use

Grand Forks’ Gary Smith stands in front of his Church of the Flying Spaghetti Monster float. Photo: Submitted
Grand Forks’ Flying Spaghetti Monster leader still boiling over driver’s licence photo

Gary Smith, head of the Church of the Flying Spaghetti Monster of B.C., said he has since spoken to lawyers

Most Read