Fact-Checking the VIMC Lawyer Letter
Given the high employee turnover rate at the Vancouver Island Motorsport Circuit, perhaps we can forgive them for consistently getting the facts wrong. After all, none of the key players at VIMC were around when this whole mess started back in 2013. But you'd think their lawyer would make sure to have all the facts straight before writing a threatening letter to the municipality. The SNA, of course, has been studying this case in-depth since the beginning, and we are here to set the record straight (again).
The "do-over" of the public hearing on VIMC's rezoning application is the result of legal threats by VIMC in the form of a letter sent by VIMC lawyer Lorenzo Oss-Cech to North Cowichan's lawyer Suhkbir Manhas on October 15th, 2019. The letter (which is part of the Council Meeting Agenda Package for November 6, 2019) contains errors, false claims, and unfounded accusations, which we will now address and clarify.
"In 2016...North Cowichan sold a large part of the subject lands to my client..."
Actually, the sale took place in early 2014. Also, the municipality sold just under 50 acres of land to VIMC's landlords.* In 2015, the landowners purchased an additional 100 acres of adjacent land zoned I2, then in 2016 they purchased another 130 acres of adjacent land zoned A4. However, the municipality did not own any of those lands. Thus, of the 282 acres that Mr. Oss-Cech's client owns, less than 50 of those acres were sold to them by the municipality.
"...[North Cowichan] provided written assurances (without any disclaimers) that the zoning for my client's intended use was appropriate."
The municipality only provided such assurances for the split-zoned parcel they sold to VIMC. Numerous FOI requests by the SNA over the years have not revealed any such correspondence regarding the other parcels. Note also that the property for which North Cowichan provided assurances does not have the same zoning as the other parcels.
"My client...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."
Again, our FOI results have revealed no assurances whatsoever from North Cowichan with respect to a Phase Two development. In fact, we could find no evidence that a future expansion was even discussed with the municipality at any point during the sale negotiations. More importantly, the 130 acres of land zoned A4 (Rural Resource) most definitely do not allow for anything like a "vehicle testing and driver training facility". The plans for Phase Two included these A4 lands (see their rezoning application dated July 22, 2017), so there is no way that VIMC believed they would be allowed to expand without a rezoning application and, therefore, a public hearing and vote by council. If VIMC "fully expected" to build then they either didn't understand the rules, or they simply expected that any such vote would go their way - a mistake due to their own hubris, not North Cowichan.
In fact, they only changed their expansion plans after it became apparent to VIMC that the public was not crazy about their proposed 300-acre motorsports playground. It was 18 months after their original application that VIMC changed its expansion plans and restricted the layout to just the 100-acre parcel zoned I2. They then applied for a development permit, which does not require input from council or the public. Despite all their talk about changing their track layout because they "listened to the public", their intention was to shut the public out of the conversation for good.
"my client paid $266,500 to build a new water line off Drinkwater Road as part of the development agreement for Phase One"
That line was to service the VIMC facilities and, as stated, was part of the development agreement for that land. We have found no evidence that North Cowichan included any considerations of expansion in exchange for that water line. Thus, it has no bearing on the rezoning application.
"My client...has never received any violation, charge or warning from North Cowichan staff"
This is just patently untrue. In fact, VIMC received several warnings from North Cowichan staff with respect to their off-road track, which was built without any permits, and which they continued to operate despite such warnings and even a warning letter from the Mayor himself.
"On October 11, 2018...the zoning claims were dismissed."
The Court made NO ruling on the legality of the zoning in that application. Instead, the Court said that IF they reviewed the zoning and found it was not appropriate, they would refuse to issue a Declaration (you can read the full explanation here). Instead, they agreed to consider the legality of the zoning as part of the claim of Nuisance. However, they never got the chance to do so, because shortly after this ruling, Mr. Oss-Cech (who was not involved in this application) reached out to the plaintiffs and offered to settle.
"As part of the rezoning application, my client was asked by North Cowichan staff to provide a variety of concessions...in addition to the concessions, my client was also asked....Despite all of the above, North Cowichan council voted 5-2 against the rezoning"
It sounds as though VIMC believed that if they met these concessions, a "yes" vote was guaranteed! That is not how the rezoning process works - it's a VOTE. That means no matter how much you sweeten the pot, there are no guarantees you will get your way. Many rezoning applications involve Concessions and Amenities proposed by the developer, and staff often advise applicants to do so - there is nothing unusual about this situation.
"council voted 5-2 against the rezoning, apparently on the basis of a late submission by the Cowichan Tribes"
Wow, really? Blame the First Nations people?
We know Mr. Oss-Cech was at the public hearing, because we saw him there. But apparently he missed the part where Councillor Douglas listed all the problems with VIMC's acoustical studies before he cast his "no" vote, or Councillor Justice's speech about the problems with the environmental studies and the referrals received from local environmental groups before he cast his "no" vote. Perhaps he wasn't paying attention when Councillor Marsh described her reasons for voting "no". Because there were PLENTY of reasons to vote "no" to this rezoning that had nothing to do with Tribes. The municipality's OWN NOISE EXPERTS had described VIMC's noise studies as "invalid" and concluded that the track was having a "significant negative impact" on the surrounding community. These reasons were apparently ignored by Mr. Oss-Cech, who decided to throw the blame at Tribes.
"The rejection of the rezoning was a surprise to my client, as it is otherwise entitled to a development permit".
First, why would the outcome of a vote come as a surprise? VIMC and their lawyers understood that this was a free vote, that council was under a legal obligation to keep an open mind throughout the process, so why would VIMC assume it was a done deal?
Second, if they were so certain they were entitled to a development permit, why did they continue with the public hearing process? They spent thousands of dollars on consultants, they cost the Municipality many thousands more in fees associated with processing the application and hiring their own consultants, renting out the Cowichan theatre, etc. Why would VIMC not just sic their lawyers on North Cowichan back in December 2018 when they were told to apply for a rezoning and not a development permit? Why waste everyone's time and money?
Perhaps the real truth is that VIMC knew their claim to a development permit sat on shaky ground, so they took their chances with the rezoning application, knowing if it didn't go their way, they could pull this legal threat out of their back pocket in a last-ditch attempt to get their expansion. Why else would they spend all that time and money on a rezoning application?
"My client has followed the law slavishly....[no, it hasn't; see above, and read here]. It went above and beyond...by committing to the Concessions and agreeing to provide the Amenities"
Um, no. Your client did what every developer does when they apply for a rezoning application. It is part of the process, and in no way guarantees that you will get your way.
"My client has issued contracts, booked clients and has mobilized equipment to the site to commence construction of Phase Two..."
Well that was silly of them, wasn't it? It was a VOTE. And a vote can go either way. Perhaps they shouldn't have assumed it was all a done deal? Attempting to hold North Cowichan taxpayers accountable for VIMC's hubris and lack of understanding of due process is a stretch.
We then move on to the sort of baseless accusations and personal attacks for which VIMC is now famous, thanks to full-page rants in the Citizen and postcards mailed out to residents in which VIMC manager Paul Rossmo launches an ad hominem attack on SNA President Isabel Rimmer, or Facebook rants against the Somenos Marsh Society for having an unfavourable opinion of their development plans after being graciously offered a tour of the facility.
Mr. Oss-Cech provides no evidence or basis for his claims that plaintiffs in the Noise Complaint lawsuit were involved in North Cowichan municipal elections (they weren't) or that a "small group of residents" usurped the rezoning process (based on the number of pink "NO" stickers at the public hearing, hundreds of people objected to the expansion).
There is no evidence of any "racist attacks" against his client, although the same cannot be said for VIMC's treatment of Cowichan Tribes lately. Their attempt to sway Tribes' opinion on the rezoning application by offering to "donate" lands that remain the unceded terrority of the Cowichan People is a public embarrassment and shows a shameful lack of respect, not to mention "offering" a place for spiritual practices that would sit directly beside a 150-acre racetrack.
The bottom line is this: VIMC submitted a rezoning application because their original expansion plans included all four properties they own, two of which unequivocally do not allow for a motorsport facility. The idea to restrict the expansion to the single I2 property came only after it began to dawn on them that this was not all a done deal. Despite handing out money to every organization in town who would accept it, the public remained unimpressed with VIMC and their facility. The idea that "from the beginning" VIMC was assured of their right to expand is simply false, a story made up to support their current threats of legal action.
On December 9th (Cowichan Theatre, 6 pm) show your support for those councillors who voted "NO" the first time around. Let North Cowichan know that the citizens of the Cowichan Valley Regional District (which includes North Cowichan, by the way, so let's dispense with this talk of who is allowed to speak) will not be bullied or threatened into usurping our democratic processes. Let VIMC know that this sort of behaviour will not be tolerated.
* the lands upon which VIMC operates are owned by numbered companies registered in Ontario; VIMC is actually another numbered company that is the operator of the facility