The Municipality of North Cowichan’s council will meet today (Nov. 10) to discuss the Supreme Court of British Columbia’s ruling that it failed to provide justification for the controversial decision to deny the Vancouver Island Motorsport Circuit its rezoning plans.
Mayor Al Siebring said it’s up to council whether it will appeal the decision, issued by Justice Diane MacDonald on Nov. 6, or to go back and redo the rezoning process for VIMC’s application.
“The court’s decision was based on a ruling by the Supreme Court of Canada that was made before our judicial review was held in September,” Siebring said.
“That ruling stated that if a public institution is going to change a policy, they must explain why. Basically, we were entitled to make the decision we made, but we had to give the reasons for it. We were not aware of that at the time.”
In her ruling, MacDonald said that for six years, North Cowichan supported the VIMC’s development and was satisfied that its uses complied with the zoning bylaw.
“In these circumstances, it was arbitrary for the council to diametrically disagree with a past interpretation of the zoning bylaw without explaining the basis for the disagreement,” she said.
“There was a reason, the uses were not compliant with the zoning bylaw, but no explanation. Not providing a justification in and of itself renders the decision unreasonable. It was incumbent on the municipality to justify the decision. Unfortunately, neither the council nor the underlying record explain to the (VIMC) the basis for the municipality’s complete reversal of its earlier decision. This lack of justification undermines public confidence in the rule of law and renders the decision unreasonable.”
MacDonald said council’s decision to deny the rezoning application is quashed, and the matter is remitted back to council.
“The council is to assess the application on its technical merits and reconsider it in light of these reasons,” she said.
North Cowichan’s director of planning Rob Conway sent a letter to the VIMC denying them a development permit for its $36-million expansion plans after a contentious, marathon public hearing that took two days to complete in October, 2019.
Council decided to not allow rezoning for the 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 in December, 2019.
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.
“However, upon careful review, I have concluded that the proposed land use is not permitted [under zoning].”
But in her ruling, MacDonald said property owners have an expectation of consistency when they rely on established and longstanding representations and decisions by a municipality.
“When consistency is denied in these circumstances, property owners have a right to know why,” she wrote.
“That is particularly so where, as here, the prior decision and practices involved the very same parties, uses, zones, and zoning bylaw.”