Zoning Issues

In 2013, representatives from the German Auto Import Network (the principal operators of VIMC) offered the Municipality of North Cowichan $1 million for a 46-acre parcel of land located in an industrial area adjacent to the nearby community of Sahtlam. As part of the sale, VIMC required written confirmation from the municipality that the parcel's zoning allowed for the operation of a "vehicle testing and driver training facility".

The parcel was in a unique zoning situation: two years earlier, a 15-acre portion of the 46-acre parcel was rezoned from I-2 (Heavy Industrial) to C-8 (Commercial Rural Recreational) as part of a plan to subdivide the parcel and sell the C-8 portion to a local go-karting club so they could build a racetrack (racetracks are a permitted use in C-8, but not in I-2). The deal with the go-kart club fell through before the parcel could be subdivided, so when GAIN purchased the property it was "split zoned": a single parcel with two distinct zones, only one of which allowed for a racetrack.

Nevertheless, the municipality decided not to rezone the parcel to a unified zoning designation - which would have required a public hearing - and instead sold the parcel in its split-zoned state. North Cowichan staff argued that the proposed use included both "industrial testing" (which suited the I-2 zoning) and "recreational use" (which suited the C-8 zoning), and therefore either activity could be carried out anywhere on the property. As a condition of sale, the municipality provided these assurances in writing to VIMC. 

 

The SNA disputes the assertion that VIMC is engaging in "industrial testing": this is clearly a recreational facility for enthusiasts of the sport of auto racing. Nevertheless, even if this interpretation is correct, such activities would only be allowed on the I-2 portion of the property, not on the C-8 portion of the property. Conversely, only the C-8 portion of the property can be used for "recreational purposes", not the I-2 portion. Since the racetrack spans both zones, use of the track is in violation of North Cowichan Zoning Bylaw 2950, which clearly states:

"No lands, buildings, or structures in any zone shall be used by the owner, occupier, or any other person for any use, except one which is provided in this Bylaw as being specifically permitted for the zone in which it is located." [emphasis added]

In other words, recreational use can only take place on the portion of the track that lies in the C-8 zone, and industrial testing can only take place on the portion of the track that lies in the I-2 zone. Clearly, vehicles used for either purpose are using the entire track, and are therefore in violation of the zoning bylaws.

To make matters worse, sensing that the absence of "vehicle testing and driver training" from the zoning bylaw might be challenged, staff added the term to a draft zoning bylaw that was anticipated to go up for review before the new racetrack facility would be completed (it never did). It is difficult to interpret this behaviour as anything other than an attempt to cover up the deliberate misinterpretation of the zoning bylaw and avoid future challenges to the zoning.

The SNA presented this information to the North Cowichan Committee of the Whole on March 23, 2017. The intention was to engage in dialogue with Mayor and Council regarding the situation with VIMC. However, at the meeting Mayor Jon Lefebure instructed council to remain silent "on advice from legal counsel". This defensive posture, after being specifically invited by Council to discuss the matter before the committee, put an end to any meaningful discussion regarding permitted use. Thus, in June 2017, the SNA filed a Notice of Civil Claim that included a request that the court review the zoning bylaw and provide a "Declaration" on the legality of the racetrack. The municipality was named as a third party in the suit because the zoning bylaw falls under their jurisdiction. 

In June 2018, the Municipality of North Cowichan filed an Application to have the Declaration portion of the lawsuit removed, arguing that courts have no right to interfere with the decisions of local government. On that point, the court ruled in favour of the municipality, although it allowed the issue of zoning to remain as part of the nuisance suit (click here for details).

The issue of zoning may soon become moot, since VIMC has filed an application to rezone the existing track and adjacent properties that they wish to develop. However, the manner in which this facility was originally approved stands as a lesson that should never be forgotten. In a gross misuse of the Delegated Authority Bylaw, the Chief Administrative Officer and Director of Planning (both of whom, notably, are no longer with the municipality) were able to bypass input from Council and the community by declaring the zoning to be appropriate, in direct contravention of the zoning bylaw. Worse, the response of Mayor and Council upon hearing of this situation was to cease any discussions with the public on this matter while insisting that the zoning was appropriate - a move they were forced to make lest VIMC sue the municipality for misrepresentation and breach of the sales contract. The final blow was the refusal of the provincial court to "interfere" with local government decisions, thus leaving residents without any recourse for justice. 

 

Having learned this lesson in the hardest of ways, the Sahtlam Neighbourhood Association has vowed to work with the Municipality of North Cowichan to make changes to the development process so that such abuses of power are not able to happen again. Fortunately, with a new CAO and a new Mayor and Council, progress in that regard has been positive.