Wednesday, April 11, 2018

Council Made Its Decisions on the Kingsway Projects - What Happens Next?



Last night, Greater Sudbury Council approved four applications made by 1916596 Ontario Limited, to add three new land use permissions to an industrial subdivision on the Kingsway.  Two amendments (one to the Official Plan, the other to the City’s comprehensive zoning by-law) will permit a casino on part of the industrial lands.  Another amendment to the City’s zoning by-law will permit an arena/events centre on other lands.  And a third zoning amendment will permit a surface parking lot on yet additional lands.

Together, these decisions of Council are in keeping with the City’s stated desire to move forward with what has become known as Phase 1 of the Kingsway Entertainment District. 

What Happens Now? Appeals!

So, what will happen next?  Almost certainly, all of these decisions will be appealed over the next 25 or so days by members of the public who believe that Council’s decisions have violated the policies of the City’s Official Plan and ignored provincial policy.  The legislation sets out a 20 day appeal period for these kinds of filings, and Day 1 is counted from the date when the City issues notice of the decisions – which could be as soon as later this week.
Tom Davies Square, City of Greater Sudbury

Appeal letters will be filed with City, along with a fee paid by every appellant for each decision being appealed.  The fee for appealing each decision is $300 (the money goes to the Province, not the City) – and that may prove cost-prohibitive to some who are considering appealing (more on that later).  But it’s still almost a certainty that all decisions will be appealed.

When the 20-day appeal period runs out, the City will be responsible for compiling an “appeal record” that will go to the Local Planning Appeal Tribunal (LPAT - or "Tribunal").  The record will include all of the documents that were relied on in the lead up to Council’s decision.  Interestingly, this could mean that some documents that have never been made available to the public will form a part of the submission.  The submission will also include a copy of all public comments received before the decision was made – in unredacted form.

Preliminary Screening and LPAT Determination of Appeal Validity

And of course, the letters of appeal (and fees) will be forwarded by the City to the Tribunal as well.  When received by the Tribunal, the Tribunal will do a preliminary screening of the appeals.  This is to ensure that the appeals meet legislatively prescribed minimum criteria – specifically, the disclosure of land use planning reasons for the appeals.  It may be that some of the appeals filed with the City are found not to be valid by the LPAT (and there is an appeal process before the LPAT if the LPAT seeks to dismiss these appeals without a hearing), but quite likely most, if not all appeals will be accepted by the LPAT as valid – at least on the basis of the initial screening.

These processes, by the way, are so far quite similar to what would have happened with the Ontario Municipal Board appeal process.  Now, here’s where things start to get interesting – and an element of uncertainty is injected into the process.

Brave New World?

In some respects, we’ve just entered a brave new world for land use planning here in Ontario as of April 3rd.  The 100+ year old Ontario Municipal Board has been morphed into the Local Planning Appeal Tribunal.  There are numerous changes to the ways in which appeals will now be handled, but probably the most fundamental changes include a switch from a full “hearing de novo” process to a far more streamlined assessment related to provincial policy/plan regard/consistency/conformity and Official Plan conformity.

In the past, the OMB would convene a new hearing on a matter – despite a similar process having already been undertaken at the municipal level.  Now, the starting point will be a little different.  Council’s decisions are likely to carry much more weight, because the legislation deems that all decisions made by Council “have regard to matters of provincial interest”; be “consistent with provincial policy” and “conform with or not conflict with provincial plans” and “conform to Official Plans”.  By making the decisions last night, Council is telling the public and the LPAT that those decisions do all of those things.

Professional Planning Opinions

And there might be a little more to it.  Before making the decisions last night, Council (via earlier Planning Committee meetings) heard from its professional planning staff that the applications met all of those tests.  So, for these matters, not only is there a municipal Council decision that proclaims regard/consistency/conformity, but it appears to be a decision informed by advice from professional planners that say the same thing.

What’s not clear is how much weight the LPAT will assign to the recommendations and advice of professional planners at the outset of an appeal process at the time of the initial screening to determine appeal validity.  In the past, the OMB gave significant weight to the advice of professionals – but only during a hearing process, where cross examination of professional opinions by other parties and the Board itself could take place.  But now the LPAT will be using a largely paper-based process where cross-examination of experts and professionals can’t occur.

This might suggest that the LPAT could favour Council’s decision, while being a bit more dismissive of the position of the appellants.  But hold on for one moment, because here is where things get complicated – and I suspect our Council doesn’t even have an appreciation for this.

Agreeing With and Ignoring the Advice of Professional Planners

At last night’s meeting, we heard how Council made a decision that was in keeping with the advice of professional planners.  That is true.  However, it’s only half the story.  Council also made decisions last night that IGNORED the advice of professional planners.  You see, part of the submission to the City included several reports prepared by professional planners who indicated that approving the land use applications would not have regard to/be consistent/conform with the Planning Act/provincial policy/provincial plans/the Official Plan. 

So when this matter ends up in front of the LPAT via a paper process, the LPAT will have several different professional opinions about legislative and policy tests – but only one decision of Council.  No one is quite sure what the LPAT might do, initially – but it’s my suspicion that the advice/direction of professional planners could play a role in determining regard/consistency/conforming at this stage in  hearing process – but only where that evidence of professionals is uncontradicted.  And that’s not the case here.

(So note: if you’re reading this analysis and trying to apply it to a different planning appeal circumstance, my suggestion is this: hire a planner before a decision is made by Council, and get your planner’s comments on the public record.  Ditto for other experts if the dispute relates to technical matters like water quality or traffic).

Preliminary Screening Not a Big Deal for Appellants

I also should point out that we have a municipal Council member here in Greater Sudbury who seems to be under the impression that the LPAT is likely to take action at this point in the process and determine that appeals filed by appellants will be dismissed over their lack of land use planning grounds.  His argument is that since Council made the decision to approve the applications based on professional planning advice, the LPAT will determine here at this stage of the process that Council's decision had regard to the Planning Act, was consistent with provincial policy, conformed with and did not conflict with the Northern Growth Plan, and conformed with the Official Plan.  Sorry - that's not likely to happen here.  As I indicated earlier, this part of the process is quite preliminary - the LPAT will be screening appeals on the basis of minimum submission requirements ("did the appellants disclose planning grounds for the appeal?  did those planning grounds indicate the decision of Council didn't have regard to the Planning Act, was not consistent with provincial policy, conflicted with the Northern Growth Plan and did not conform to the official plan?  did they pay the prescribed fee?").  And if the LPAT determines that the appeal submission didn't quite live up to the minimum requirements, it will....likely ask the appellants for additional information rather than dismiss the appeal out of hand (if it asks for and does not receive the additional information it needs to conclude that the appeal met minimum requirements, it will only then likely proceed to dismiss the appeals at this stage).

So for those who are being led down the garden path that this all might be resolved by June, you can forget about it.  Clearing this stage of the process will not prove to be a hurdle for knowledgeable appellants.

Rule 26 - Mandatory Case Management Conference

Back to our process for a moment now.  After the LPAT makes an initial determination regarding the validity of appeals (whether minimum criteria are met), the LPAT will schedule a Mandatory Case Management Conference (CMC).  That’s new.  We’re now entering into territory that I’m sure will become known in the Ontario Planning World as “Rule 26” – which is presently terra incognita.  Rule 26 is the section of the LPAT’s Rules of Practice and Procedure that will guide this new, preliminary appeal process.

The “LocalPlanning Appeal Tribunal: Appeal Guide A” describes a CMC as a, “mandatory hearing event that provides LPAT with the opportunity to identify parties and participant requests, identify or narrow the issues, identify facts that may be agreed upon, and provide directions for disclosure of information. LPAT will also address parties to discuss opportunities for settlement, including the possible use of mediation or other dispute resolution processes.

New Restrictions on Parties and Participants?

That sounds something like the OMB’s “Pre-Hearing Conference” process – although there appear to be some added restrictions on who can participate in the new Tribunal process.  Parties may be added and participants identified by the LPAT at a CMC, but there is a new requirement that those wanting to participate or be added as a Party (for Official Plan and zoning amendment matters) first petition the LPAT at least 30 days before the CMC takes place.  You have to file a submission in writing and identify specifically whether the decision of Council was inconsistent with provincial policy, does not conform with or conflicts with a provincial plan, or fails to conform with an Official Plan.  And that’s different.

In the past, via the OMB, participants in particular were given a little more leeway to make submissions – often a participant might agree with an overall development proposal, but have some concerns about how to make it a little better.  The OMB rarely excluded participants from a hearing.
But now to participate in an Official Plan or zoning amendment matter, it looks like you have to believe that the decision of Council failed to meet the regard/conformity/consistency tests of the legislation/policy.  That might not be a big deal for potential participants in these Greater Sudbury matters who oppose Council’s decision, but it seems that it will completely restrict members of the public who agree with Council’s decision from playing any role in the LPAT’s process.  Further, those who want to play a role in this process in order to make a decision just a little bit better, rather than offer outright opposition, will also find that the opportunity to do so has come and gone (if they couldn’t convince Council in the first place, they won’t be able to convince the LPAT).

Surely I am reading this wrong, right?  Well, that’s where some of the process uncertainty starts to creep in.  We’re in a different world now – a streamlined world that doesn’t start from the beginning again.  It could very well be that the big thinkers behind this LPAT process have thought clearly about this, and the restrictions on supporters of a Council decision in front of the LPAT might be redundant in this environment, along with hearing from concerned citizens.  With this in mind, coupled with the new submission requirements which clearly emphasize that to become a party or a participant, you must believe the decision failed the legislative and policy tests, it seems to me the process wonks really only have thought this through.

An interesting side-bar here, having to deal with appeal filing fees.  $300 a pop might be a little steep for some members of the public who are thinking of filing appeals.  I know that’s steep for me – I’m just some guy who doesn’t like Council’s decisions and who believes that they don’t meet the legislative/policy tests that they are required to meet.  But I don’t exactly have a spare $1,200 hanging around to appeal all of these decisions.  But since I expect all of them to be appealed, someone in my position could simply wait until the matter is handed over to the LPAT, and then make a written submission to be added as a Party to the matters 30 days for the CMC.  Sure, there’s no guarantee that someone would be added as a Party, but there is a good chance that you would be.  If you follow this route, you could potentially save yourself some money, for the moderate risk of not being added by the Tribunal as a Party.  Just sayin’.

Timing of the CMC

75 days notice.  That’s what parties get regarding the timing of the CMC.  Let’s start a bit of a timeline now for the Greater Sudbury matters.  The decisions were made last night.  Let’s assume that notice is issued today or tomorrow (and that’s pretty quick), meaning that the last date for an appeal would be May 1-ish. Give 15 days to the City to transmit the appeal record to the Tribunal, and call it 10 more days for the Tribunal to make the initial determination that the appeals meet minimum requirements.  That takes us up to May 25th.  Assume that there is no back-and-forthing on the validity of the appeals to delay matters further.  With 75 days of notice for a CMC, the earliest a CMC could be held on these matters would be around August 7th – after the Civic Holiday.

But there’s still stuff going on.  Although the Province has sold this new process as being one that’s intended to be more open to private citizens, I’m not so sure that’s actually going to be the case.  Here’s something new: in the lead-up to the CMC, appellants have to file an Appeal Record and Case Synopsis (two different things) with the Tribunal.  The Appeal Record is intended to be a document book that an appellant will rely on in support of their submission to the Tribunal. It will include copies of all relevant sections of the legislation, provincial policy, official plans and growth plans, along with any other written document (like the City’s staff reports) which might be referred to by an appellant in their submissions.

Certificates of Service must also be filed, confirming that the process was followed.

My take is that this process might be good for the LPAT, but it will prove overly bureaucratic for every-day appellants.  Anyway, it is what it is – and it’s going to mean that some people are going to be hanging out at Staples a lot over the summer.  Well, at least Staples is air-conditioned.

Anyway, keep in mind that we’re still just at the preliminary stage here.  At the CMC, a Tribunal Member will decide on who gets to participate in a future hearing.  There will be no actual oral evidence given at the CMC – although the Member may ask for additional information arising from the Member’s review of the written records already submitted.  The Member may also determine whether mediation of a matter will be appropriate.

Mediation

Given the relatively entrenched positions of (expected) appellants and the City, mediation doesn’t appear to make a whole lot of sense – on the surface.  However, I expect that there will be a mediation process entered into for these matters, as one of the goals of mediation is to scope the issues that the Parties are disputing.  The one thing about the Greater Sudbury matters that stands out for me is the sheer number of issues that have been raised by Kingsway opponents.  From my perspective, I don’t think all of the issues are relevant.  And it may be that while an issue seems to be an important one – take the road salt matter, for instance – it may be that a lack of expert analysis around this matter on the part of the Kingsway opponents might lead to this matter ultimately being scratched by the Parties themselves.  And yes, that’s my not-so-subtle way of suggesting that, going forward, if you want to dispute a land use application on technical grounds, hire your technical experts BEFORE Council makes a decision.  Since the anti-Salt people haven’t made an expert submission to support their thesis that road salt in the watershed is an actual issue, I would think that a mediation session will lead to salt being dropped by parties.  And hey, I expressed concerns about road salt too – and I continue to think it’s an issue, but I’m not willing to put my money where my mouth is.  And if you want to fight City Hall in this new world, that’s what you’ve got to do, the Precautionary Principle be damned.

Back to our timeline.  Figure the LPAT acts quickly to schedule a mediation session after the CMC.  So now we’re into the last week of August – nah, everyone’s at camp that week, so let’s go into the week after Labour Day.  We’re up to September 4th now.  What comes next?

Rule 27 Hearing

We’re leaving Rule 26 territory, and now we’re into processes guided largely by Rule 27 – where the Tribunal determines whether to send a matter back to Council  for further consideration – or whether it’s more appropriate to dispose of the appeals.  So this is the big one for appellants.  It’s at this hearing event that each of the parties is given just 75 minutes to make their cases that the decisions of Council either have regard to/are consistent with/conform to the legislative and policy tests, or don’t.
What I haven’t been quite able to figure out here is how much time we can expect to elapse between the CMC and this first Rule 27 hearing.  I think 60-ish days makes sense, but it may be more time would be appropriate where mediation occurs.  For the purpose of this blog, let’s stick to 60 days – and that would put the Rule 27 hearing in the first week of November, say on November 5th.  That means the matter will be going for a hearing after the October 22, 2018 municipal election – not that the election is going to have any bearing on the Rule 27 hearing event.

But, it might have some bearing on what comes next.

Dismiss Appeals or Return the Matters to Council?

At the Rule 27 hearing, after listening to all parties make their cases, the Tribunal Member will do one of three things:
  • S/he will dismiss the appeals if the appellants fail to convince the Member that Council’s decisions did have regard to Section 2 of the Planning act, were consistent with the Provincial Policy Statement, did conform or not conflict with the Northern Growth Plan, and did conform to the City’s Official Plan.
  • If the Member determines that Council’s decisions did not have regard to Section 2 of the Planning Act, were not consistent with the Provincial Policy Statement, did not conform with or did conflict with the Northern Growth Plan, and did not conform to the Official Plan, the Member will refer the matter(s) back to Greater Sudbury Council, without any recommendations
  • or with recommendations on how to better achieve regard/consistency/conformity.

With regards to those recommendations, going forward I think those are going to be telling.  If the Tribunal Member believes that regard/consistency/conformity can be salvaged, expect to see recommendations.  But there may be times that the Tribunal Member is convinced that there’s just no way for applications to meet the tests – in those circumstances, expect to see no recommendations at all.

Timing of decisions?  Give the LPAT Member 30 more days to consider and write the Order.  That takes us up to December 4th.

Outcomes of the Rule 27 Hearing

Note that it is possible that the LPAT might return some of the applications to Council, while dismissing the appeals related to the others.  For example, the appeal to the OPA for the casino might be dismissed, but for technical reasons, the LPAT might return the zoning by-law with recommendations (like, “it’s not a ‘place of amusement’, guys – get your act together and call it a casino in the by-law!”), while returning the arena and parking lot zoning amendments without any recommendations. It could happen.

In the first outcome, above – where the appeals are dismissed – that’s pretty much the end of the matter.  Council’s decision is vindicated and things get rolling.  With zoning in place, the draft plan of subdivision which the City believes is still before it could proceed towards registration (unless it’s sidetracked by another process, as there are some in this City who believe that the subdivision approval lapsed in October, 2016 – and when I say “some” I mostly mean “me”).  The subdivision registration is critical for Zulich and the City, as the lot that the City wants to obtain for the arena doesn’t actually exist yet – it will only come into being when the subdivision is registered.  And Gateway can only acquire property from Zulich for the casino after the subdivision is registered.
After the subdivision is registered and Site Plan approved, building permits can be issued, and if building commences in the spring of 2019, that means that it appears quite possible, if not probable that Council’s timeline to have the Wolves in a new arena by September, 2020 could still be maintained.  It’ll be pretty tight – better for the City’s timeline if there are no appeals.  But that’s not going to happen.

(one other matter should be noted here: at least municipal Council member has indicated that he will press Council to ask for costs against appellants if they are unsuccessful at making their case in front of the Tribunal.  Motions for costs can always be brought against any party, but it is somewhat unusual for motions to be brought against good faith appellants by a municipality.  In this case, even if Council does opt to pursue costs, based on what's happened with cost motions in the past at the OMB, I just can't see a motion for costs being successful against appellants - but it may be that the new Tribunal will take a different view.  But I don't think so)

Matters Returned to Council for Second Chance

In the event that some or all of the matters are returned to Council by the LPAT, here’s where things might get a little interesting, because the Council to which the matters will return will *not* be the same one from which they originated, due to the election.  We know at least one member of Council has said that they’re not going to run again, so at the very least, there will be one new face on Council, with a new opinion.  I expect that there will be several others. 

With the matters returning to Council, new decisions by Council will be required.  Council gets a second chance here, and could potentially redeem itself by making decisions in keeping with provincial policy and its Official Plan.  That may mean saying “No” to the applications. 

Council has 90 days to make a new decision.  That takes us into early March, 2019.  Add 20 days for the appeal period, and we’re at the end of March.  Add 15 days for the City to transfer the Record to the LPAT, and we’re in the middle of April, 2019.

But no matter what the new Council says, you can expect that the new decisions will be appealed back to the LPAT – either by the original appellants, or, if Council now refuses the applications, by the applicant and/or Gateway casinos.

The Second Appeals

On this Second appeal, the LPAT has greater latitude with what it can do.  It can either approve one or all of the applications, modify and approve them, or deny the application(s) or do some combination of all of these things.  These second appeals will follow a more traditional hearing process, which consists of Pre-hearing conferences and oral hearings (although the Rules ofPractice and Procedure do express a preference for paper-based hearings, the Rules also indicate that oral hearings may still be the norm in a number of circumstances, including where complexity is an issue.  For the matters here in Greater Sudbury, it’s fair to suggest that there is a high level of complexity in play).

60 days of Notice is required for the first hearing event of the Second hearing process.   For those keeping track, that likely brings us up to the middle of June, 2019.  And since the first hearing event is likely to be a pre-hearing conference, the actual hearing likely will not get underway until the fall of 2019, with a decision/order issuing in December, 2019.  If this happens, there is almost zero chance that the Wolves will be playing their 2020 home opener at a new arena on the Kingsway.
So that’s the process –or as near to it as I can gather from reading about it.  And since no one has yet participated in it, that’s the best that I can do.

The Likelihood of Outcomes - My Opinion

Now we come to the opinion piece.  What do I realistically think is going to happen?  Let me answer those questions at each of the milestone points in the process – where a decision/outcome can be expected.  I’ll stick to the 3 proposed land uses: casino, arena and parking lot.

Decisions related to all 3 proposed uses are going to be appealed to the LPAT.  Most of those appeals – and specifically the ones filed on behalf of Casino Free Sudbury and the Downtown BIA will be screened by the LPAT and found to meet the minimum requirements for appeals.  That means that a CMC will be scheduled for all matters.

At the CMC, it is likely that additional parties and some participants may be added – but that’s a bit of a wild card, as the LPAT might consider that these requests are too similar to the appeals already having been made by the other parties.  I’m interested to see how things might play out during this stage – but either way, the CMC will be held and things will go forward.

I expect that there will be a mediation session prior to the Rule 27 Hearing.

The Rule 27 hearing is the big one for the appellants.  While I believe that the decisions of Council made last night do not have regard to the Planning Act, are not consistent with provincial policy, do not conform to and do conflict with the Northern Growth Plan, and do not conform to the City’s Official Plan, I think those cases will be easier made by the appellants with regards to the arena and the parking lot.  The casino is going to be a difficult matter, because there is so little in the legislation and policy that speaks to this sort of land use – there’s hardly anything to guide decision-makers.

With that in mind, I expect that the Tribunal will return the arena and parking lot zoning amendments to Council, without recommendations.  They may also return the Casino OPA to Council with the recommendation that an analysis on public health and safety be carried out first, prior to a further decision.  They may also return the zoning amendment for the casino to Council with the recommendation that a different zoning category than “place of amusement” be applied for.
Given how much our current Council is invested in the Kingsway Entertainment District, I would expect all of the matters returned to Council to also be approved again by Council, and appealed again to the LPAT.  After a lengthy hearing process, I expect that the casino will be approved by the LPAT, but the arena and parking lot will not be.

Deciding Issues

With regards to the issues that will decide these matters, I don’t have much hope that road salt and ground water recharge will have any bearing on the outcomes, even though those issues are near and dear to my heart.  Traffic issues, too, will not be determinative, as the only traffic study undertaken at this time supports the applications. 

I do believe the lack of an economic analysis is going to ultimately hurt the City’s chance for success for the arena application, but even without the urbanMetrics Report, arena appellants will still have a strong position at the LPAT.  What’s clear to me from reading the City’s Staff Report in support of the arena application is that City Staff failed to consider significant policies in the Official Plan with regards to the downtown.  Further, important parts of the provincial policy statement received little or no discussion, including those parts that suggest that public facilities like this arena ought to be located in central hubs located in parts of the City that are livable.  Further, the climate change considerations in the PPS were also largely ignored by Staff in their analysis.  And finally, Staff is relying on a questionable interpretation regarding institutional land use permissions being allowed “throughout the City” to demonstrate conformity with the Official Plan.  For these reasons, I expect arena appellants to ultimately succeed in thwarting these proposals that are, in my opinion, contrary to the long-established city building vision that we’ve prescribed to here in Greater Sudbury through our many and varied land use and economic development guidance documents.  Throw in the urbanMetrics Report that indicates about 200,000 discrete trips to the downtown will be lost in preference to the Kingsway should the arena locate out of the downtown – well, I just don’t get how Staff could have ignored that finding while claiming the health of the downtown won’t be impacted.

 (opinions expressed in this blog are my own and should not be interpreted as being consistent with the views and/or policies of the Green Parties of Ontario and Canada)