A panel of B.C. Court of Appeal judges unanimously agrees that the Municipality of North Cowichan was within its rights to deny a development permit for the expansion of the Vancouver Island Motorsport Circuit (VIMC).
The court released the judgement on Nov. 3, 2021. Judges heard arguments in the case on April 14, 2021.
“We’re really happy. I think the court made the right decision,” said North Cowichan Mayor Al Siebring, reached by phone on Thursday. “We were criticized when we decided to launch the appeal. But, you know, for us, there were some principles at stake here in terms of [the municipality’s] authority.”
The appeals court judges found that the earlier B.C. Supreme Court judgment made legal errors in finding that North Cowichan unreasonably denied a permit for the track expansion. The appeals ruling found that the denial was reasonable and did not need further explanation.
The Vancouver Island Motorsport Circuit has the option to ask the Supreme Court of Canada if it will hear the case. The Supreme Court grants about 80 requests out of around 600 it receives in a year. It typically will hear cases only of significant public importance, beyond the immediate dispute between the parties.
The appeal’s court awarded costs to the municipality both for the appeal’s hearing and the earlier B.C. Supreme Court hearing. Siebring explained that this does not foot the entire legal bill, just the costs of bringing the matter before the courts. The municipality’s lawyer fees are covered by insurance, Siebring said.
How we got here
The saga of the Vancouver Island Motorsport Circuit is as long and twisting as the track itself.
The facility opened in 2016 to outcry from neighbours who said the noise was disturbing and they had not been consulted on the development.
Neighbours sued both VIMC and the municipality in 2017, alleging that the operation was an illegal nuisance and that the municipality did not follow its own zoning rules in allowing the development.
The parties walked away from that lawsuit in 2019. The neighbours said at the time that they felt heard by the municipality, and confident there were avenues to address their concerns outside the courts.
Also in 2019, VIMC applied to North Cowichan for a rezoning of its property. The rezoning would eliminate questions about the legality of the zoning and offer certain legal promises around community amenities and noise reduction. It would also permit an expansion of the facility that would double the length of track and triple its footprint.
After two nights of marathon public hearings and an upwelling of opposition, council denied the rezoning.
Then VIMC threatened to sue for $60 million dollars in damages. Mayor Siebring called for a do-over of the public hearing. Another public hearing saw another round of opposition to the expansion, and council again voted “no.”
Council also voted to rezone the existing track property, clearing up the legal uncertainty over the existing facility. This action neutralized some of the legal risk without permitting the expansion.
Separately, VIMC had applied for a development permit to go ahead with its expansion plans. Development permit decisions are handled by staff, not council, and do not require public consent. Staff rejected this application on the basis that the industrial zoning on the expansion lands do not permit motorsports track use.
VIMC sued the municipality on the basis of that decision. The original track was allowed to develop on industrial land, so the expansion should be permitted, too, VIMC argued.
The B.C. Supreme Court sided, to a certain extent, with VIMC, finding that it was unreasonable for North Cowichan not to explain why the motorsport track expansion wouldn’t be permitted on industrial land in light of the fact that a former staff member permitted the original track development on industrial land.
Now, the municipality has won that appeal.
Meanwhile, noise complaints against the facility continue. The North Cowichan council meeting agenda for Sept. 21, 2021 includes 19 letters from community members detailing how “horrendous noise” from the facility is brutalizing the neighbourhood. [end]
The Discourse’s ongoing in-depth coverage of the Vancouver Island Motorsport Circuit is possible thanks to community members who financially support this work.