By Colleen Dane

Comox Valley Record

January 21, 2010

Of the seven arguments made by the Sierra Club of Canada to discredit the regional district’s approval of the Dyke Road Gas and Go, not one stuck in a judgment from the B.C. Supreme Court.

Justice B.D. MacKenzie’s judgment on the lawsuit filed by the Sierra Club against the Comox Valley Regional District and Gas and Go Petroleum North Ltd. was released Thursday afternoon.

“I am satisfied the Board was acting within its proper jurisdiction in these circumstances and did not exceed its legislative authority,” wrote MacKenzie in the 15-page reasons for judgment document.

The argument about the Gas and Go goes back nearly two and half years. In October 2007, the CVRD approved a development permit for the gas station, contingent on a list of conditions being met to the satisfaction of regional district staff. At the same meeting, after that resolution was passed, the board approved a rezoning that would remove fuel stations from the permitted uses for commercial properties, such as that on Dyke Road.

The Sierra Club argued that the development permit (DP) issued for the Dyke Road Gas and Go should be ruled invalid because the regional district can’t give “pre-approval” to DPs, and they didn’t have all the information to approve it, such as stormwater management plans.

They argued that giving what they call a “pre-approval” tied the hands of future boards.

The Sierra Club also said that leaving the final signoff on the project in the hands of the manager of legislative services was unlawful, and that the DP the manager did sign in January 2009, shouldn’t be valid because the zoning had changed and the use was now non-conforming.

In his judgment, MacKenzie works through each of the arguments, saying that in fact, the board was entirely within its rights.

He said they did not issue a “pre-approval,” but a final approval, contingent on conditions that once met, can be signed off by a staff member as designated by the board.

“This was an efficient and practical procedure for the day-to-day business operation of local government,” he writes.

The judge adds that the use of the property as a gas station can stand, despite the change in zoning, because of owner Wayne Procter’s clear intention from the beginning to use it for fuel sales.

“I agree with the respondents that these undertakings (the series of studies and plans commissioned by the owner) went well beyond the planning stage or a mere intention to use,” he said.

He also said that the alleged threat of a lawsuit by Procter, and the allegation that the DP was issued as a result of that threat, could not be proven.

The judgment is good news for the CVRD.

“We’re pleased with the court’s decision,” said Leigh Carter, their general manager of public affairs and information systems management.

For the Sierra Club Comox Valley — originally the Courtenay River Estuary Action Committee — it’s a hiccup in their overall effort to protect the area’s environment.

“We’re disappointed but we’re not discouraged — we see it more as a speed bump along the way,” said Mike Bell, president of the group.

He said they’ll continue their work to protect the estuary and have some more ideas for action. Their board will meet next week to consider their options.

Procter did not return a call from The Record before deadline Thursday. Since the lawsuit was launched, the company has opened a liquor store on the Gas and Go site — and Carter said they still need a building permit before any work can be done for the project.