The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 1: In the Beginning

I’ve decided that I’m going to blog about my perceptions and experiences with an appeal that I’ve filed to the Local Planning Appeals Tribunal (LPAT) over a land use decision made by the City of Greater Sudbury Council related to a zoning by-law amendment that would permit an “arena” in an industrially-designated subdivision near the Kingsway.  I’ve written a little bit about this before – mainly about what I perceive the process would be, along with what I expect the outcomes to ultimately be.  I also provided a timeline for this matter to be dealt with by the LPAT (see: “CouncilMade Its Decisions on the Kingsway Projects – What Happens Next?”  Sudbury Steve May, April 11, 2018). 

I’m blogging about my experiences for two reasons: first, to keep community members informed about what’s going on with this process, as a lot of it won’t be in the public’s eye.  Admittedly, my assessment is going to be biased – I am an appellant to one of these matters, but I have expressed concern about all of the matters in front of the LPAT, for various reasons (which you can get a good sense of in my April 11 blog).  Second, the LPAT process is new – and I’m hoping to share some insights into being a participant in that process that may be of a more general interest to others who are either in front of the LPAT right now or may end up there – especially unrepresented parties, like myself.

I should state again in this post that my advice to anyone who files an appeal (previously an appeal to the OMB, now an appeal to the LPAT): if you want to lose, represent yourself.  If you want to win, hire a planner and maybe a lawyer.  I realize that I am not following my own advice, although I feel I have a good reason: I just can’t afford to hire a planner or a lawyer.  My only recourse is to represent myself, so that’s what I’m going to do.  Although, about those expectations....nevermind.

But there are other appellants who either listened my advice, or (far more likely) hit upon the strategy because it is a sensible one if you really want to win.  Council of the City of Greater Sudbury made 4 decisions on April 10, 2018: the adoption of an official plan amendment and the of a zoning by-law amendment to permit a casino; the adoption of a zoning by-law amendment to permit an arena; and, the adoption of a zoning by-law amendment to permit a parking lot.  All for lands located within a draft approved (2010) plan of subdivision (originally draft approved for industrial uses) on lands designated “General Industrial” in the City’s Official Plan (2006).  All of these decisions have been appealed to the LPAT.

The Appellants

Tom Fortin, head of Casino Free Sudbury, and the Downtown Business Improvement Area (BIA) are what I consider to be the primary appellants – they’ve both appealed all of the municipal decisions.  They’ve been engaged in these matters before applications were filed for changes in land use permissions back in December, 2017.  The BIA was active in lobbying Council through a very public effort prior to Council making a decision in June, 2017 to locate a new arena on the Kingsway.  The BIA wanted to see a new arena built in the downtown – the location for this use identified in the City’s Official Plan, the Downtown Master Plan and in the recent (2016) Economic Development Plan.  Casino Free Sudbury has an interest in sound economic development, and has made a case that casinos are the inhibitors of economic development – something that anyone who has ever played Sim City has long known.  But beyond Sim City, Casino Free Sudbury has the facts and the stats to back up its claim that casinos are bad for business in general, and really bad in mid-sized communities that have few tourists, due to the way in which they make their money primarily from existing residents (for more about Casino Fee Sudbury, visit their website: www.casinofreesudbury.com). 

Fortin and the BIA are joined by Dr. Christopher Duncanson-Hales, who represents a grassroots multi-faith initiative in the City that has expressed concerns with a new casino (see: “Multi-faith leaders lend support to anti-casino movement inSudbury,” CBC News, April 6, 2018).

Fortin, the Downtown BIA and Duncanson-Hales have all retained solicitor Gordon Petch of Municipal Law Chambers to represent their interests.  A synopsis of their appeals is available on the Casino Free Sudbury website at:  http://www.casinofreesudbury.com/Documents/Appeal%20Synopsis.pdf

There are two other appellants – John Lindsay, representing the Minnow Lake Restoration Group (MLRG – see their website here: http://www.minnowlake.ca/rest.htm) has filed an appeal of the zoning by-law to permit a massive new surface parking lot adjacent to the casino and arena.  The MLRG has long expressed on-going concerns about the cumulative effects of road salt in the Ramsey Lake watershed – so it’s no surprise that this unnecessary parking facility would be opposed by the MLRG on the basis that impacts on the watershed (in which the parking lot is located) haven’t been evaluated.

And finally, there’s me – who has been (and likely will continue to be) described as a local “activist” in the media.  Let me be clear: I’m not activist.  I filed my appeal of the zoning by-law amendment to permit an arena because I support a continuation of the status quo in my community: that a new arena facility, if one is deemed necessary, be located in the City of Greater Sudbury’s downtown in accordance with our long-standing planning documents, including the Official Plan, Downtown Master Plan and our Economic Development Plan.  Those documents came into being after significant public consultation exercises, and represent a clear direction for this matter in the larger context of building a vibrant City ready to meet the challenges of the 21^st Century.  The real “activists” here are the 6 Councillors that, on June 27, 2017, out of the blue voted against that direction and chose instead to reverse course and embrace a car-centric location for new public infrastructure in absence of any economic impact analysis.

But that’s just my opinion.

 

Anyway, I posted an early version of my letter of appeal to my blog – so for anyone who wants to see the complete range of reasons that I filed, feel free to read the letter – it really gets into the weeds of my rationale (see: “My LetterAppealing the City of Greater Sudbury's Decision to Adopt By-law 2018-63Z toPermit an Arena on the Kingsway,” April 25, 2018)

The Story So Far

For those following this matter over the past year, you may not be surprised to discover that things continue to be pretty messed up.  Of course, it all started back in the late winter of 2017 when Council opted to build a new arena – somewhere – in the City.  The City initiated a site selection process that shut the public out of the decision-making process.  Criteria to evaluate sites around the City were composed that prioritized “Cost” and “Parking” over “City Building” and “Vision”.  Nevertheless, when push came to shove, the site selection committee recommended a downtown location for the new arena.  The matter went to a vote, and the motion was defeated by Council via a 6-6 tie vote (with one Council member having declared a Conflict of Interest).  That left the door open to a new motion approving the only other site determined by the site selection committee to be viable – the Kingsway site, which Council the adopted in a vote of 10-2.

The City quickly partnered with the land owner, Dario Zulich (technically “1916596 Ontario Limited”), who had agreed before the June 26, 2017 vote to sell land in his draft approved subdivision to the City for a new arena at below-market cost ($10), and to offer additional 40 acres of land to the Sudbury District Motorsports Association (SDMA) for a new motorsports park (land to be combined with another 100 acres of Crown land which the SDMA is seeking to be released from the provincial Ministry of Natural Resources and Forestry).  See:  “TrueNorth Strong Centre Site of Future SDMA Race Track,” South Side Story, undated – but pre-June 27, 2017).

Before the June 27, 2017 vote of Council, landowner/developer/Sudbury Wolves owner Dario Zulich had been making presentations to the public to gain support for his vision of a “True North Strong” entertainment hub on his industrial subdivision lands.  A new casino, arena/events centre, hotel, restaurant campus, motorsports park and other uses had been discussed, including a drive-in theatre, mini-golf, a soccer dome and maybe an additional ice pad.  It was the discussion around the inclusion of a motorsports park as part of this ‘vision’ that likely led Councillor Gerry Montpellier, to declare a conflict of interest in the vote on June 27^th.

After the June 27^th vote, the City quickly entered into a partnership with Gateway Casinos, the company that the province had selected to operate a number of casinos in Northern Ontario.  Zulich’s numbered company formed the third member of the partnership.  This partnership would share the costs of developing what quickly became known as the “Kingsway Entertainment District” (“KED”).  The partnership then went on to spend money on something called the “Integrated Site Plan” (not to be confused with a “Site Plan” under the Planning Act) that set out where buildings were to be located, and what other amenities were to be found on the two lots that Zulich was agreeing to release – one to the City for an arena, and the other to Gateway for a casino. The public was afforded an opportunity to provide input into the Integrated Site Plan through a number of open houses (one of which I attended), but this process is likely to always be remembered for it’s online input options, which consisted entirely of an online survey that asked a single question, “Are you excited for the future” (seriously – I can’t make this stuff up).

The Decision Was Made. Now to File the Planning Applications

Ultimately, in mid-December 2017, 3 land use planning applications were filed by Zulich – just days after the transition date for matters headed to the OMB vs. LPAT came and went.  I’m sure that was just a coincidence.  The applications for an official plan amendment and zoning by-law amendment for a new casino were supported by a Planning Study, prepared by Karl Tanner MCIP RPP of Dillon Consulting, and a Traffic Impact Study, also prepared by Dillon The zoning amendment for the arena was supported by a 4-page memo from Tanner.  Interestingly, Tanner is acting is Zulich's agent, but Dillon Consulting has been retained by Zulich, Gateway Casinos and the City of Greater Sudbury, and have provided planning reports and a Traffic Impact Assessment (and addendum), leading to some confusion about just who the 'applicant' is in these matters.

The City gave notice of having received complete applications in accordance with the Act.  I had the opportunity to review and make copies of the materials filed by Zulich at the time of submission, and noted some pretty significant problems, including missing signatures from the landowner (Zulich) authorizing his agent Tanner to make the application.  But nevertheless, things moved forward.

The City, to its credit, held two public meetings on these matters (only one public meeting was held on the zoning by-law for the parking lot) in front of its Planning Committee.  An initial planning analysis was prepared that, for the arena use, indicated that the City would be further assessing conformity with the Official Plan – but on the night of the first Planning Committee meeting, in their presentation to Planning Committee, staff advised that the proposed use conformed to the Official Plan.  That threw a number of public presenters for a loop – as many were present there to make a case on this very issue, with the hopes that staff would listen and conduct a careful analysis after hearing from the public.  But it turned out that staff had already made up their minds about this important issue (see City of Greater Sudbury Staff Report, dated December 18, 2017 – Presented to Planning Committee on January 22, 2018).

Members of the public making oral presentations to Planning Committee on January 22, 2018 – the night of the first public meeting – were overwhelmingly opposed to the arena and casino projects.

A second public meeting was held on March 28, 2018.  Between the the time of the two public meetings, Casino Free Sudbury and the Downtown BIA provided the City with an economic and financial analysis prepared by Rowan Faludi, MCIP RPP CMC PLE, Partner of urbanMetrics Inc., (hereinafter referred to as the “urbanMetrics report” – see:  “ Kingsway Entertainment District andArena – Economic and Financial Analysis”) and a planning analysis prepared by Robert Dragicevic MCIP RPP, Senior Principal of WND Planning.  urbanMetrics was critical of the lack of economic impact analysis that had been undertaken by the City for both the new casino and the arena – particularly with regards to the potential impacts on Greater Sudbury’s downtown expected from the closure of the existing arena and the opening of a new arena on the Kingsway. 

At the public meetings for the three proposed uses (the parking lot was being considered now too via a new application - which appears to have been added to the mix as a result of the peer review of the Traffic Impact Study that identified that while there was enough parking on the casino and arena sites to accommodate the minimums prescribed by the zoning by-law, there was not actually enough parking on these sites to accommodate expected needs - which is weird, because usually minimum zoning standards for parking are more than enough to meet needs - unless maybe you're not applying the right zoning standards), the public once again overwhelmingly spoke out against the proposals.  But by this time, the City had received a significant amount of correspondence from the public – about an equal number of submissions from those in favour of the applications and those opposed to them.  

I experienced my own little personal hiccup during my oral presentation at the public meeting regarding the casino applications.  The Planning Committee Chair was adhering to a 5-minute maximum presentation time limit, and when my five minutes were up, I had only finished talking about the proposed Official Plan amendment and had not begun to discuss comments related to the zoning by-law amendment, which were substantial.  I challenged the chair, causing a little bit of drama, and was ultimately given an extra three minutes to present.  I somewhat reluctantly accepted the Chair’s ruling, but I still feel that given that these are some of the most important development applications that will ever come forward in my community – and given that the Planning Act or its regulations are silent on restrictions related to oral testimony, I felt a little put out.  But it was a fight I wasn’t going to win.  If you’ve any thoughts to share about restricting the public during public presentations for matters under the Planning Act, please do share them in the comments section of my blog.

The Decisions

Municipal Planning Staff recommended approval of all applications.  The only surprising thing that I heard was that the City was interpreting its zoning by-law in such a way so as to suggest that a casino should be considered a ‘place of amusement’.  Presently, there is a gaming facility in Greater Sudbury – the Slots at Sudbury Downs, outside of Azilda, which is slated to close when the new casino is built (on the Kingsway or elsewhere).  The Slots are zoned as a “casino”, but the zoning permission being sought now by Zulich for a casino on the Kingsway was for a “place of amusement” – a permission that exists in many parts of the City, particularly in commercial areas.  Things like bowling allies, mini golf, rock climbing centres and pinball arcades are all classified permitted in a “place of amusement” zoning category (although interestingly the zoning by-law singles out ‘pinball arcades’ and restricts them from locating within 200 metres of a school site.  So under this interpretation of the by-law, it looks to me like pinball arcades are more of a social menace to highschool students than is a casino – and that’s a strange way of looking at the by-law, I think).

Planning Committee ultimately recommended approval of the applications, and on April 10, 2018, all of the matters went to Council, and all were adopted.  In accordance with the Planning Act, the City issued Notice of adoption of the by-laws on April 16, 2018.  The last date for filing appeals was identified appropriately as being May 7, 2018.

Amending the Amendments

But on April 24, 2018, Council considered amendments to the adopted zoning by-laws.  It seems that the City missed providing operative text in each of the by-laws, so that there would have no mechanism for the zoning to be changed.  An oversight, for sure - but an important one.  These amendments were not on Council's agenda.  There were no public meetings held under the Planning Act for them.  The Minutes of the April 24, 2018 Council meeting place this matter in the "Addendum" section, so it looks as if they were added after the Agenda was made available to the public.  It may be that the City had considered these changes to be 'minor' or 'administrative' because they would not be changing the intent of the zoning by-laws adopted on April 10, 2018.  I'm not sure, because there does not appear to have been any debate or discussion at all about this item - see approximately 2:09:50 of the recording of the April 24, 2018 Council meeting, available here.

But the answer might be found in Section 20.11.1 of the City's Official Plan, which reads:

"No public meeting will be required where Council proposes to adopt an amendment to a zoning by-law for the purpose of correcting a technical or typographical error or for the purpose of making minor changes to the zoning requirements applicable throughout the zoned area. However, those who are likely to be affected by the amendment will be notified in a manner set out in Section 20.11.2, Persons to be Notified, of the date the matter will be considered by Council."

But 20.11.2 simply reads:

"Notice of a public meeting will be given by first class mail or by newspaper notice."

I probably missed this Notice in the newspaper.  Or maybe the City might not have thought I would not be affected by the amendment, not being a landowner directly impacted.  Who knows. I sure don't.

But what I've been struggling to determine is whether the City acted in accordance with the Planning Act when, on April 24th, in the middle of an appeal period, it adopted amendments to zoning by-law amendments adopted on April 10.  I have two questions about this:

1) Can Council take action to amend a by-law that is not in effect?  Without question, the three by-laws adopted on April 10 were not in effect on April 24, given that the 20-day appeal period had not expired.  To me, that kind of suggests that there isn't actually anything in front of Council that could have been amended - and that's still the case, I think, given that those 3 by-laws have now all been appealed to the LPAT.  Planners, please do share your thoughts on this - can you amend a by-law that isn't in effect?

2) If you can make an amendment to a zoning by-law that isn't in effect, if the amendment is 'minor' or 'administrative', can you forego following the processes for amendment identified in Section 34 of the Planning Act simply by virtue of having a policy in your Official Plan about how to do this?  I get that if you've got alternative notice provisions in your Official Plan, you don't have to follow the time periods for Notice set out in Section 34 - but is an approval authority able to by-pass holding a public meeting?  I don't see any provision in the Act for that - but maybe I'm missing something.  Again, planners, let me know your thoughts.

Another Decision

On April 25, 2018, the City of Greater Sudbury issued Notice of the April 24 amendments to the April 10 zoning amendments.  These new Notices identified a last date of appeal for (what appear to be) all of the by-law amendments (those passed on April 10 and those passed on April 24).  That date was identified as being May 15, 2018.

There is no indication that these April 25 Notices were intended to replace the April 16 Notices. To me, it appears that the City has issued two separate notices relating to two separate decisions about a single matter.

Not really having a clue whether the last date of appeal for the arena decision(s) was going to be May 7th or May 15th, I filed my appeal on May 4th, and I suggested to others whom I had heard would be appealing to do the same thing.  At this time, I have not received a copy of any of the other appeal letters, but I am almost certain that appeals from Fortin, Duncanson-Hales and the BIA were all filed with the City prior to May 7th via their solicitor, Gordon Petch.  I am less certain that John Lindsay filed his appeal before the 7th.  I would think that any appeals received after the 7th of May will be determined by the LPAT to have been filed too late - and therefore not accepted.  And I suspect that Lindsay was probably basing the timing for filing his appeals on the second Notice he received from the City - the one that told him that he had up until the 15th to file.

When I worked at the Ontario Municipal Board as a Planner, it was not at all unusual to see the former City of North York's Committee of Adjustment add several days to the 20-day appeal period for filing appeals.  I know for a fact that other municipalities have also had difficulty counting to 20 - often advising appellants that they can file appeals 23 or 25 days after the Notice of Decision has been issued.  And I know that the OMB used to routinely make determinations that any appeal received by an approval authority outside of the prescribed 20 day appeal period was not a valid appeal - no matter what the Notice might have said.

At this time, the LPAT hasn't made a decision on the validity of the appeals (more about that in Part 2 of this series), so it's not known whether Lindsay's appeal will be heard.

And one last thing that's not clear to me about any of this - presuming the other appeals are determined by the LPAT to be valid, what exactly will the LPAT hold a hearing on?  I appealed Council's decision of April 10, 2018.  That's the one that I'm intending to build a case against.  In a de novo world, the City would have had a lot of options about how to make their error right.  But now that the LPAT will be focused on making a determination just on the decision of Council - it's not clear at all exactly what that might mean in this context (given that the legislation doesn't appear to contemplate TWO decisions made at different times for the same matter - which is why I have my doubts that you can actually amend a by-law that isn't in effect).

Add this to the list of things for the LPAT to rule on, I guess.  And we'll look at a few more of the twists and turns with the LPAT in Part 2 of this series.

(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)