A panel of British Columbia Court of Appeal judges unanimously agreed that the Municipality of North Cowichan had the right to deny a development permit for the expansion of the Vancouver Island Motorsport Circuit (VIMC).
The tribunal rendered the judgment on November 3, 2021. Judges heard arguments in the case on April 14, 2021.
“We are really happy. I think the court made the right decision, ”North Cowichan Mayor Al Siebring said by phone Thursday. “We were criticized when we decided to launch the appeal. But, you know, for us there were principles at play here in terms of [the municipality’s] authority.”
The judges of the court of appeal considered that the first Judgment of the Supreme Court of British Columbia erred in law in finding that North Cowichan unreasonably refused a permit for the track expansion. The appeal decision concluded that the refusal was reasonable and did not require further explanation.
The Vancouver Island Motorsport Circuit has the option of asking the Supreme Court of Canada if it will hear the case. The Supreme Court subsidies about 80 out of about 600 requests it receives in a year. He will generally only hear cases of significant public importance, beyond the immediate dispute between the parties.
The court of appeal awarded costs to the municipality for both the appeal hearing and the previous hearing of the Supreme Court of British Columbia. Siebring explained that this doesn’t pay the full legal bill, just the costs of the court case. The municipality’s attorney fees are covered by insurance, Siebring said.
How we got here
The Vancouver Island Motorsport Circuit saga is as long and winding as the track itself.
Read in-depth coverage of the motorsport track problem on The Discourse
The facility opened in 2016 to an outcry from neighbors who said the noise was disturbing and that they had not been consulted about the development.
Neighbors sued VIMC and the municipality in 2017, alleging the operation was an illegal nuisance and that the municipality failed to follow its own zoning rules in authorizing the development.
The parties withdrew from the lawsuit in 2019. Neighbors said at the time that they felt heard by the municipality and were confident that there were ways to address their concerns outside of the courts.
Also in 2019, VIMC asked North Cowichan for a rezoning of its property. Zoning would eliminate questions about the legality of zoning and offer some legal promises regarding community amenities and noise reduction. It would also allow an expansion of the facility that would double the length of the track and triple its footprint.
After two nights of marathon public hearings and a wave of opposition, the council refused the rezoning.
Then VIMC threatened to sue for $ 60 million in damages. Mayor Siebring called for a resumption of the public hearing. Another public hearing saw another wave of opposition to the expansion, and the council again voted “no”.
Council also voted to rezone ownership of the existing runway, removing legal uncertainty over the existing facility. This action neutralized some of the legal risk without allowing expansion.
In addition, 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 request on the grounds that industrial zoning on the expansion lands does not allow the use of powersports tracks.
VIMC sued the municipality on the basis of this decision. The original runway was allowed to develop on industrial land, so expansion should also be allowed, VIMC argued.
The British Columbia Supreme Court sided, to some extent, with VIMC, finding it unreasonable for North Cowichan not to explain why the motorsport track expansion would not be allowed on a industrial land given that a former staff member authorized the development of an original runway on industrial land.
The court asked the municipality to reconsider. Instead, the municipality appealed the decision.
Now the municipality has won this appeal.
Meanwhile, noise complaints against the facility continue. North Cowichan Council September 21, 2021 meeting agenda includes 19 letters from community members explaining how the ‘horrible noise’ of the facility brutalizes the neighborhood.
The continued in-depth coverage of the Vancouver Island Motorsport Circuit Speech is made possible by the community members who financially support this work.