Mayor Al Siebring sent shock waves through the community Monday when he announced that he is forcing a re-vote on the Vancouver Island Motorsport Circuit (VIMC) racetrack expansion. The rezoning was denied earlier this month when Council voted 5-2 against the application after a two-day public hearing that lasted more than 14 hours. In an epic showing of poor sportsmanship, VIMC lawyers have now threatened to sue the municipality for $50 million if North Cowichan doesn't allow them to expand.
Rather than stand up to this blatant display of corporate bullying, Mayor Siebring responded by frightening the public with warnings of massive tax hikes if VIMC doesn't get what they want. While happy to crunch numbers around the $50 million in damages VIMC allegedly claims they're entitled to, the Mayor failed to mention just how likely it is that VIMC would succeed with a lawsuit against the Municipality. In fact, there is ample reason to believe that VIMC hasn't a legal leg to stand on, making this little more than empty threats from an entitled corporation with no respect for due process.
VIMC is apparently upset that North Cowichan refused to issue them a Development Permit (DP) for their expansion. A DP is issued when the zoning already allows you to build what you want. If the zoning doesn't allow it, you need a rezoning. Importantly, with a rezoning, Council decides whether it's approved, and a public hearing is usually required. DPs, on the other hand, are approved exclusively by staff: Council and the public get no say.
If you have been following our story for a while, you'll know that this is how the racetrack was allowed to set up shop in the first place. Staff granted them a DP, effectively shutting the public out of the process. VIMC is claiming that if a DP was good enough for Phase 1, it should be good enough for Phase 2.
What VIMC has failed to mention is that the initial DP was based on the unique dual-zoning of the "Phase 1" property (where the existing facility now sits). In fact, when VIMC was purchasing the Phase 1 property from North Cowichan in 2013, the municipality made it very clear that approval of the motorsport circuit was based on the combination of Industrial and Commercial Recreational zoning on that parcel. Several documents from the months-long exchange between VIMC's lawyers and North Cowichan staff refer specifically to the dual zoning, and the combination of permitted uses they provide, as justification for allowing VIMC to set up shop in North Cowichan without a rezoning or public hearing.
Fast forward to August 2018: VIMC was in the middle of a rezoning application to expand their facilities and realized there might be significant public resistance. So VIMC changed the proposed layout of the racetrack expansion in an effort to avoid public input altogether. Of course, VIMC spin-doctored it to sound like they had "listened to the people of the community" and changed their plans accordingly. NO. They changed their plans so that the entire development fell into one legal parcel of land that was already zoned for Industrial use. VIMC then waltzed into Municipal Hall with a DP application, believing they had found a way to avoid a rezoning altogether, leaving those pesky elected officials out of the discussion and preventing the public from having a say.
But North Cowichan staff said "No, you need to rezone". And they had every right to say so, because the land on which VIMC wants to expand (the so-called "Phase 2" land) is only zoned for Industrial use. There is no Commercial Recreational zone on that parcel, which North Cowichan clearly stated was necessary for the motorsport circuit to be approved on the Phase 1 lands. Thus, North Cowichan is within their rights to say "This isn't the same zoning as the parcel you are currently operating on - you need a rezoning".
Good luck to VIMC if they wish to fight that decision in court.
We know their chances are slim-to-none of winning that battle, because we tried something similar ourselves. In our lawsuit against VIMC, we asked the courts to take a look at the permitted uses of the existing facility and rule whether they were consistent with North Cowichan's zoning bylaws. The courts refused to do so. They were loathe to interfere with local government decisions, claiming that North Cowichan had every right to make whatever land use decisions they felt were best for their jurisdiction. VIMC knows this very well - their lawyer Sean Hern was the one who argued successfully to have our request for a court decision on permitted use removed from the lawsuit. Thus it would appear that VIMC's threat to sue North Cowichan if they aren't granted a DP is nothing more than an intimidation tactic.
VIMC is also claiming that denying them a DP for their expansion places their current operation at risk. It's difficult to understand their reasoning here. First, from the moment the SNA began questioning the zoning on that property, the municipality has taken the position that VIMC is legally operating a permitted use on that parcel of land. VIMC has been operating for four years with the approval of the municipality, and our attempts to challenge that approval in Court failed. Where is the uncertainty?
Second, if VIMC is so concerned about the zoning of their existing facility, there is nothing to stop them from asking the municipality to rezone that parcel. But of course VIMC won't do that, because this issue isn't really about security for their existing operations - that's just a red herring. VIMC wants to expand, and they will try anything to force this down the throats of Cowichan Valley residents.
Let's be clear: when VIMC built their existing facility, they knew that North Cowichan's approval was based on having both Industrial and Commercial Recreational zones on the Phase 1 parcel - their lawyers beat that issue to death when they bought that land. They also knew the zoning on the Phase 2 parcel was limited to Industrial only. Nobody forced them to buy the Villa Eyrie or the Cowichan River Lodge - that was their own hubris, assuming success from the circuit would rub off on those other businesses. If their existing operations are now in jeopardy because they were denied an expansion, the blame lies squarely with VIMC for poor planning and a failed business model.
Given all this, the idea that VIMC would be successful in suing North Cowichan for $50 million seems highly doubtful. Instead, what we have here is a group of supposed sports enthusiasts acting like sore losers. They willingly participated in the rezoning process, they poured hundreds of thousands of dollars into consultants and hefty donations to local community groups in an effort to curry public favour, but things didn't go their way and now they want to gain by force what they couldn't gain through due process. Sadly, North Cowichan's Mayor seems all too willing to give in to their bullying and intimidation, rather than standing up with his citizens, who are justifiably outraged at VIMC's deplorable behaviour. Hopefully Council will stand by their votes and not allow the public to be dragged through another exhausting public hearing process.