A car tests the Vancouver Island Motorsport track during an opening event in the spring of 2016. (John McKinley file photo)

A car tests the Vancouver Island Motorsport track during an opening event in the spring of 2016. (John McKinley file photo)

Vancouver Island Motorsport Circuit asks for judicial review of denied development permit

Track operators wants judge to review whether North Cowichan’s denial was properly handled

The Vancouver Island Motorsport Circuit has filed for a judicial review of North Cowichan’s decision on Dec. 4 to deny a development permit for its expansion plans.

North Cowichan Mayor Al Siebring said council made the decision in support of a letter to the VIMC from North Cowichan’s director of planning Rob Conway stating the application for a development permit was denied.

RELATED STORY: NORTH COWICHAN DENIES MOTORPORT CIRCUIT REQUEST FOR DEVELOPMENT PERMIT

Siebring pointed out the judicial review is specifically related to council’s decision at its meeting on Dec. 4 not to issue a development permit, and not council’s decision to deny a rezoning application to allow for the VIMC’s expansion plans after two lengthy public hearings in the fall.

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

He said that decision will now go before a judge for review.

“The VIMC wants a judge to determine if the process was correct and if there were any procedural errors in law in the way in which council’s decision was made,” Siebring said.

“If a judge determines a legitimate error was made, what would normally happen is that the judge would send it back to council and we’d go through the process again and make a decision, without any errors. But that’s hypothetical because we’ve been very careful and we’re quite confident our decision on this issue will survive the review.”

Siebring said he expects the judicial review will take place within the next 50 days.

Conway sent the letter to the VIMC denying them the development permit after a contentious public hearing that took two days to complete in early October.

Council decided to not allow rezoning for the $36-million expansion — which would have included 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 — after that public hearing.

Council again denied the rezoning after a second public hearing on the expansion plans was held last month.

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

Based on council’s decision on the rezoning after October’s public hearing, Conway said in his letter to the VIMC that he was “obliged” to deny the application for a development permit for the project.

“I appreciate that it is (your) position that the development proposed…is for the same land use as under the development permit issued by North Cowichan for phase one of the VIMC and, as such, there has been a past determination that the land use in compliance with (zoning),” Conway said in the letter, dated Oct. 25.

“However, upon careful review, I have concluded that the proposed land use is not permitted (under zoning).”

The VIMC has referred comments on the issue to Sean Hern, a partner in the Farris’ litigation group who spoke on behalf of the VIMC at the council meeting on Dec. 4.

He outlined the VIMC’s issues with the denial of the development permit at the council meeting.

Hern said at the time that a decision of whether to issue a development permit is an assessment of the application in light of the municipality’s Official Community Plan.

“But this is not a land-use decision, as has been made in this case by the director of planning,” Hern said at the meeting.

“To proceed otherwise is to exceed the statutory jurisdiction delegated in respect of development permit applications. There are many examples of the court’s enforcement of this constraint on municipal jurisdiction in relation to development permit applications.”

Second, Hern said the suggestion that the VIMC’s application may not comply with the proper zoning is arbitrary and irrational in light of the VIMC having been issued a development permit in 2015 for the adjacent lands under the same zoning.

As well, he said North Cowichan’s planning department repeatedly confirmed in writing to the VIMC that the zoning uses on the land where stage two is planned were consistent with both the zoning types on the property where stage one of the VIMC is constructed.

“Third, and alternatively, the planned use for the subject lands is not singular, but is a collection of a number of different uses, and even if North Cowichan were to be concerned that some of those uses may not be consistent with the zoning, many of the uses clearly are,” Hern said.

“Accordingly, the matter of whether the user operates in compliance with the zoning in the future is, at most, a matter of municipal enforcement and not a basis to deny the development permit application.”



robert.barron@cowichanvalleycitizen.com

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