This is the
second part of my post bringing everyone up-to-speed on where appeals to the
Local Planning Appeals Tribunal (LPAT) of land use decisions for a
casino/arena/parking lot on the Kingsway are at. In my earlier post, “The Kingsway Cases at theLPAT: An (Unrepresented) Party’s Observations, Part 1: In the Beginning” (June
29, 2018) , I detailed the events leading up to the City of Greater Sudbury’s
decision to approve an arena (and ultimately a casino) on lands set aside for
an industrial subdivision on the fringe of the City’s urban area. I also looked at who the appellants are, and
the strange goings-on with regards to the City’s multiple By-law approvals and Notices
of Decision. In an earlier post, “CouncilMade Its Decision on the Kingsway Projects – What Happens Next,” (April 11,
2018), I provided my own assessment of what might happen next at the LPAT,
including an expected timeline for actions.
Well, it’s
July 3, 2018 – and the timeline that I laid out in April, which I admitted at
the time was a pretty optimistic timeline – well, things seem to be falling
behind a little bit. I had surmised
that, based on an April 10, 2018 decision of Council to approve the land use
planning applications (an Official Plan and zoning by-law amendment for the
casino; and a zoning by-law amendment each for the arena and the parking lot),
that the LPAT would make a determination on the validity of the appeals by May
25, 2018. As of today, no decision has
been made.
Notice(s) of Decision(s)
Why May 25,
2018? For LPAT process-junkies: Although
the City had 15 days to issue Notice of
Decision on these matters, I predicted that the Notice would be issued
relatively quickly by the City, given the stated desire by some on Council to see
these matters move forward as quickly as possible. Notice did issue from the City fairly quickly
– on April 16. That means that the last
day for filing an appeal would be May 7 (I predicted a May 1st
last date for appeal). With 15 days to
send materials to the LPAT, I predicted the LPAT would have a decision on the
validity of the appeals by May 25th, believing that the LPAT would
adhere to their 10-day timeline as per LPAT Rule 26.05, which reads,
“26.05 Preliminary Screening of the Notice of
Appeal - The Tribunal shall, within 10
days of the Registrar’s acknowledgement of receipt of a notice of appeal,
undertake a screening to make a preliminary determination of the validity of
the notice of appeal, and shall thereafter advise the person who filed the
notice, and the municipality and the approval authority, of the result of this
screening exercise.”
Interestingly,
Sudbury dot com reported on June 22, 2018 that the LPAT’s decision on the
validity of the appeals was still “weeks away”.
It looks like local news reporter Darren MacDonald spoke with LPAT “spokesperson”
Becky Fong (actually the Senior Manager of Communications) who said two things
of interest: a) that the LPAT had “just started” the validation process, and b)
it’s the LPAT’s goal to determine the validity of appeals within 30 days (see: “Firstdecision on Kingsway arena/casino appeals still weeks away,” Sudbury dot com,
June 22, 2018).
Determining the Validity of Appeals
First, let’s
look at a) – the timing of the LPAT’s review.
As per Rule 26.05, the LPAT now has to determine whether the appeals are
valid based on certain criteria – presumably whether the appeals were made in
time, accompanied by the prescribed fee, and whether they disclosed any
questions with regards to the decision of Council not having regard to the
Planning Act, not being consistent with the Provincial Policy Statement, not
being in conformity with the Northern Growth Plan and not conforming to the
City of Greater Sudbury’s official plan.
Having read the appeals (and having written one of them), I’m fairly
confident that there is enough contained in all of the appeals for the LPAT to
determine that the decision of Council raises some questions with regards to
the Planning Act, PPS, Northern Growth Plan and the OP. What I’m less certain of is whether all of
the appeals were received within the prescribed timeframe.
I alluded
to this concern in my previous blogpost when I wrote that I was uncertain
whether the appeal filed by Mr. Lindsay was done so by May 7th, 2018
– the last date for filing an appeal as per the City of Greater Sudbury’s first
Notice of Decision on this matter, issued on April 16, 2018. Since then, I’ve confirmed with Mr. Lindsay
that he filed his appeal on May 14, 2018 – which was the day before the last
date for filing an appeal as set out in the City of Greater Sudbury’s second
Notice of Decision.
Dueling Last Dates for Appeal
Here’s
where things get complicated. As I
indicated earlier, the City appears to have attempted to amend the 3 zoning
by-laws during the appeal period for those by-laws. The amendments could be interpreted as being ‘administrative’,
although in reality, they are somewhat substantive (the City appears to have
neglected to include language in the originally-adopted by-laws to make the
zoning changes sought operable via the addition of appropriate text to the
by-law). No Notice for these further
amendments were given prior to Council’s approval of these amendments on the
night of April 24. The proposals didn’t
even appear on Council’s Agenda.
The City
appears to be relying on Official Plan provisions regarding ‘minor’ or ‘administrative’
amendments to by-laws, but it’s not clear to me that OP policy alone can be
relied on by the City to forego notice requirements. OP policies indicate that no notice is
required, except to those “likely to be affected by the amendment” (they are to
receive Notice via first class mail or newspaper). I admit that I may have missed the notice for
these amendments in the newspaper (although if the City advertised these
amendments in the newspaper, it certainly raises some questions for me as to
why these matters didn’t appear on the Council’s published Agenda for the April
24th meeting). I also didn’t
receive notice via first class mail – although again, it could be that the City
determined that I had no interest in the matter, despite requesting notice
regarding the original by-laws – and despite receiving the City’s second Notice
of Decision, dated April 25th.
And then
there’s the matter of whether an approval authority can actually amend a by-law
that isn’t yet in effect. I’m far from
certain that the City has these powers.
In the past, this might not have mattered, as an appeal would kick
everything up to the OMB and the OMB would hold a de novo hearing on the
applications – and if the result was favorable, the City would then prepare a
new by-law for the Board. But now that
the LPAT will be holding a hearing on Council’s decision, getting the by-law
right becomes critical.
Because,
which decision of Council will it be that the LPAT holds a hearing on? The April 10th decision, or the
April 24th decision?
Mr. Lindsay's Appeal
I suspect,
but obviously can’t confirm, that the LPAT’s determination of validity might be
impacted by these competing decisions of the City – and determining whether Mr.
Lindsay has a valid appeal or not, as per legislatively required
timelines. Ultimately, I don’t think Mr.
Lindsay’s appeal should be determined to be valid, because it was clearly
submitted outside of the 20 day appeal period related to the April 10, 2018
decision of Council. I get that Mr.
Lindsay probably thought the City’s April 25th Notice of Decision
was intended to replace the April 16th Notice of Decision (as it
explicitly established a new “last date of appeal” as being May 15, 2018), but
there is nothing in the April 25th Notice that indicates it is
intended to replace the April 16th Notice. The City didn’t “repeal” the by-laws adopted
on April 10, and replace them with new by-laws – they amended them instead, via
a process that does not appear to be in keeping with the Planning Act (albeit
via a process that the City probably routinely uses for ‘minor’ or ‘administrative’
amendments, of which these amendments may be).
Given the lack of repeal of the originally adopted by-laws, and given
the lack of a replacement notice, I think the LPAT will be hard put to
determine that Mr. Lindsay’s May 14th filing was within the 20 day
appeal period for filing an appeal of the parking lot zoning by-law amendment –
and even though the City appears to have comprehensively confused matters about
the last date of appeal, I suspect the LPAT will ultimately determine Mr.
Lindsay’s appeal to be invalid for this reason.
Mr. Lindsay
may then need to turn to the courts to make a determination, if he feels that the
actions of the City (seemingly establishing a new “last date for appeal”) were
prejudicial to him. I think he might
have a natural justice case – but it’s going to take money to go to the
Courts. And I’m not certain that he
would be successful, given the 20 day statutory requirement.
Timing of LPAT's Validity Determination
Now, back
to the LPAT’s Rule 26.05 for a moment, and Ms. Fong’s statement related to the
LPAT taking “30 days” to make a decision.
When I initially read Rule 26.05, it seemed to me that the LPAT would
make a decision on the validity of appeals within 10 days. I built that 10-day decision point into my
original timeline. But a closer look
reveals that I appear to have been mistaken about this. Rule 26.05 does not indicate that the LPAT
will make a decision within 10 days, but rather only that it will begin a
screening of the appeals within 10 days of the Registrar’s letter.
Very
odd. Just about every other timeframe
established in the LPAT’s Rules 26 and 27 pertain to defined periods for
decision points. Take Rule 26.11, for
example (a Rule that I’m very focused on right now). It reads,
“26.11 Appeal Record and Case Synopsis - When an
Appellant is notified by the Tribunal that a preliminary determination has been
made that an appeal is valid, the Appellant shall, within twenty (20) days of
receipt of the notice, file three copies of an appeal record and case synopsis
with the Registrar and serve one copy upon the municipality and the approval
authority.”
As an
appellant, that seems pretty clear to me: when the LPAT says I have a valid
appeal, I’ve got just 20 days to file the appeal record and case synopsis with
the LAPT Registrar and to serve one copy on the municipality (not sure if that
means the municipality has to receive it on day 20, or if the action of serving
it on them just has to be initiated by day 20).
Anyway, I’ve got 20 days to do all of this – and that’s not a lot.
But the
LPAT apparently has given itself 30 days to make a determination on the
validity of appeals. If they had just
started doing this when Darren MacDonald wrote his column, presumably that
means the Parties will hear back from the LPAT around the middle of July with
regards to validity. So that’s a deviation
of almost two months from my timeline.
And who
knows what might happen then? If the
LPAT says Mr. Lindsay doesn’t have a valid appeal, it could be that a court
challenge might “stop the clock” via a Notice of Postponement as per Rule 3.02
or via a motion brought under 3.04 to extend timelines (the former being the
better vehicle, I think, given the unknown amount of time the Courts might take). Mr. Lindsay could also ask for a motion date
to have the LPAT hear a challenge to its validity determination, as per Rule
26.06. Ultimately, he could do both –
make a motion to challenge the decision at the LPAT, and then head to the
Courts if he’s not successful.
Connecting Appeals
Of course,
any delay to the parking lot zoning amendment(s) appeal might ultimately have no bearing on the other matters
proceeding. While the LPAT has the
ability to have related matters heard together, it’s not clear yet that these
matters are in fact related. Yes, of
course the lands are all contiguous – the casino, arena and parking lot are all
intended to occupy one lot on a draft approved plan of subdivision. And yes,
all of the matters went before Council at the same time(s).
But each
matter was initiated via a separate application. And each matter was subject to a separate
zoning by-law amendment. The City could
have proceeded on the basis of a single proposed zoning amendment for all 3
uses (and the applicant could have submitted a single amendment), but that’s
not what happened. The City even wrote 3
separate staff reports – although some of the supporting material from the applicant
appears to address several of the proposed uses (example: the original traffic
study was for the proposed casino, arena and industrial land uses as
contemplated in the draft approved plan of subdivision; later addendums to that
Study incorporated data for the parking lot use).
Whether
these matters proceed together or separately will be for the LPAT to determine.
I suspect that the parties will be canvassed regarding their thoughts. If I’m asked, I’ll tell the LPAT that it
should treat the matters separately, given the way that they have evolved via
separate applications to the City from the landowner, and the way that they
were dealt with by the City as one-off decisions, rather than through a
comprehensive process (of the sort that I had previously recommended to the
City after the June 27, 2017 decision to proceed with the Kingsway – see: “AnOpen Letter to Greater Sudbury Council Regarding a Kingsway EntertainmentDistrict,” Sudbury Steve May, July 11, 2017).
Enhanced
Municipal Appeal Record
Anyway, in
anticipation of a forthcoming decision from the LPAT regarding my own appeal, I
have begun working on my Appeal Record and Case Synopsis. I’ve been using LPAT Rule 26.12 as my guide
(too lengthy to reproduce here), particularly that part of the Rule that
suggests that to avoid duplication, I can rely on reference to the municipal
appeal record.
I had wanted
to start this exercise a few weeks ago – but I realized fairly quickly that I
wasn’t in a position to do so. Why? I hadn’t yet received a copy of the City of
Greater Sudbury’s ‘Enhanced Municipal Appeal Record’ in accordance with LPAT
Rule 26.04, which reads in part, “The municipality or approval authority shall
also provide one electronic copy to each person who has filed an appeal, and
shall maintain one paper copy with the clerk of the municipality, which shall
be available for inspection by any person or copied at a reasonable cost during
business hours.”
On June 13,
2018, I wrote to the Planner assigned by the LPAT to handle this case. I asked whether it was the LPAT’s
interpretation that I, as an appellant, should have received a copy of the “Enhanced
Municipal Appeal Record at the same time that the Record was transmitted to the
LPAT. On June 15, I received a reply
from the LPAT’s Planner that my understanding was correct: I should have
received the Enhanced Municipal Appeal Record from the City. The Planner advised that I contact the City
and request a copy of the Record, quoting the LPAT’s Rule.
On June 18,
I contacted the City and requested a copy of the Enhanced Municipal Appeal
Record, and indicated that I would be available to attend City Hall on June 19th
or 20th to pick it up.
Although initially contacted by the City’s solicitor for this matter
(who advised that he would look into this), I did not receive a further
response from the City by the end of day, June 20th. That night, I wrote to the LPAT and requested
relief from the 20-day provision for filing an Appeal Record and Case Synopsis,
citing Rules 3.02 and 3.04, and the fact that the City had not yet provided me
with the Record that they ought to have provided me in mid-May. On June 21, 2018 the City of Greater Sudbury
provided me with an electronic copy of the Enhanced Municipal Appeal Record on
a thumb drive. On June 22, the LPAT’s
Planner notified me that there would be no relief given to the 20-day period
set out in Rule 26.11.
Since the
LPAT was not going to act on its own initiative to provide relief to the 20-day
period referenced in Rule 26.11, on June 22, I wrote to the Planner requesting
the Tribunal provide me with a date for motion under Rule 10.03 – at which I
was intending on making a case to the LPAT that the City’s delay in providing
me with the Enhanced Record has been prejudicial to my ability to file an
appeal record and case synopsis, given that there are documents contained in
the Enhanced Record which I needed to review and to refer to in my own
documents – and that I should have had all of this info at the outset of the
appeal being sent to the LPAT, but I didn’t.
On June 26,
2018, the LPAT’s Planner advised that the LPAT won’t entertain any requests for
motions until the validity of the appeals has been determined. So basically, I’m out of luck until the
Tribunal determines that my appeal is valid.
Which means that I’ll be in that 20-day 26.11 period when I move forward
with a motion – and that’s about a 15 day process to just get the motion
heard. Conceivably, the motion might not
be heard at all until after the 20 days has expired. Even if the motion were heard on Day 15, and
the LPAT ruled that they would provide no relief, then I’d only have 5 days to
pull things together. Sure, I might be
able to request a “time out” as per Rule 3 – but I can’t count on that (and I
would have to bring another motion forward if the LPAT doesn’t give me a time
out on its own initiative).
This is
getting very complicated. But I’m
keeping in mind one important thing here: at least I’m not paying anyone to go
through all of this stuff on my behalf.
Anyway,
given the LPAT seems intent on taking its sweet time to determine the validity
of the appeals, I expect I’ll use that extra time wisely to pull together my
appeal record and case synopsis.
Greater
Sudbury’s Enhanced Municipal Appeal Record
But here’s
the thing: I was expecting there to be a some new material in the City’s
Enhanced Municipal Appeal Record – materials that might not have been posted to
the City’s website, but presumably that were available to the public if you had
the time to arrange a meeting to view (but not copy) those materials. When I reviewed the City’s Enhanced Municipal
Appeal Record, I did in fact note that there were a number of documents that I
had not seen before, including (redacted) submissions from the public on all of
the applications.
That’s
great. This stuff was very helpful. But some of the documents that I was really
keen to find weren’t included in the Appeal Record. Specifically, the City’s Staff Report
regarding the arena approval referred to an internal circulation of municipal
departments for comment, and alluded to having received comments from that
internal circulation. Yet there were no
documents in the Appeal Record regarding these internal circulations.
Also, I
know that the Conservation Sudbury (formerly the Nickel District Conservation
Authority) was involved in the review of the applications – including the
zoning amendment for the arena. The
applicant even indicated on the original application that they were making a “Section
59 Source Water Protection application for Municipal Drinking Water Protection”
(whatever that is) – but there was no correspondence from Conservation Sudbury.
Further,
Ontario Regulation 545/06 (which in part applies to applications for zoning
by-laws and amendments as per Section 34 of the Planning Act) indicates that
the City would have circulated this proposal to a number of organizations,
including: school boards; electrical utilities; natural gas utilities; and
(maybe) railway lines. Yet there was no
correspondence from any of these organizations in the Appeal Record. Is that because none of these organization
responded to the City’s circulation, even to say “thanks for the heads-up, but
we don’t have an interest here”, or is that an oversight?
Over the
next few days, I’ll be putting together a submission for the City with regards
to what I believe are missing documents from the appeal record.
One More
Thing About Two “Appeal Records”
Here’s one
for LPAT junkies – and it’s a big one.
Did you realize that, although the Province amended Ontario Regulation
565/06 to bring it into compliance with the new LPAT situation, it did not
amend the Regulation in a way that would have given an approval authority like
the City of Greater Sudbury a ‘heads-up’ that the LPAT itself, through its
Rules of Practice and Procedure, now had “enhanced” requirements for the submission
of an Appeal Record?
In essence
now there are two sets of requirements for Appeal Records that an approval
authority like the City of Greater Sudbury have to follow: those laid out in
Section 7 of O.Reg. 565/06, and those set out in Rule 26.04 of the LPAT’s Rules
of Practice and Procedure. Please note –
the requirements are not the same.
Mainly, the differences are administrative – but the LPAT’s Rules
require an approval authority to provide the Record to appellants, as well –
and that’s not in the O.Reg.
This is
probably why I, as an appellant, did not receive a copy of the City’s “Enhanced
Municipal Appeal Record” until I went to the City looking for it. I suspect that whatever the LPAT received initially
from the City, it likely wasn’t the “Enhanced Municipal Appeal Record” called
for in Rule 26.04 – but likely it was the record was submitted in accordance
with Section 7 of the O.Reg as per 34(23) of the Act. It is, I think, quite likely that the City
wasn’t even aware of Section 26.04 of the LPAT’s Rules until I brought it to
their attention – and really, can you blame them? They were following the O.Reg. Why would
anyone ever think that there would be two sets of requirements for Appeal
Records?
(as an
aside, I have to say this discovery took me by surprise as well, as I was
operating under the mistaken belief that the O.Reg., which I knew had been
amended, had been amended in such a way so as to be in keeping with the LPAT’s
Rules – because why would anyone ever think that there would be two sets of
requirements for Appeal Records? I
should have looked at this sooner, but here we are)
What
Happens Next
Nothing
much is going to happen now until the LPAT makes a decision on the validity of
the appeals. It might be that the LPAT
decides all of the appeals are valid, and sets a date for a Case Management
Conference. But it may be that the LPAT
decides that Mr. Lindsay doesn’t have a valid appeal – and then some of what
happens next is going to depend on Mr. Lindsay’s reaction. Given that the media appears to be keenly
interested in the goings on of the LPAT, you can expect whatever Mr. Lindsay
decides to do (or not do) will enter the public realm before too long. As Mr. Lindsay has appealed a matter (the
parking lot) that I haven’t appealed, it may very well be that I’ll find out
about his reaction for the first time via the local media.
The LPAT
will ultimately need to determine whether these matters are going to proceed
together or separately. And I expect
that a number of other matters will be raised by the appellants, due to a lack
of clarity with the process so far.
Supreme among those is the question of whether or not the City’s amending
amendments are legitimately in front of the LPAT, or whether the LPAT will be
making a decision on only the original decision of Council of April 10th.
Also, there
may be others in the broader community that now petition the LPAT to be added
as parties or participants to the matter, which the LPAT will need to address
at the Case Management Conference. I
haven’t heard of any others wanting to join – but given the massive public
reaction to Council’s decisions (both in favour and against), it may very well
be that members of the public want to share with the LPAT their thoughts on
these matters. If so, I think that
wannabe participants are going to be in store for a rude wake-up call, given
that the process for being added as a party or participant has substantially
changed since the days of the OMB. The new LPAT processes will make it a lot
harder for members of the public to get involved now at this stage. Which strikes me as somewhat odd for a
process that was touted as being ‘better for the public’ than the OMB.
Anyway, I’ll
be beavering away at getting my Appeal Record and Case Synopsis together. I’m also thinking of joining the other
appeals via a motion submission, because I have a) an interest in them (I did
comment on them publicly during the public consultation period); and, b) I’m
curious about how this process works (or won’t work) for unrepresented members
of the public, like myself. So I’ll see –
and I’ll keep everyone reading here posted!
(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)
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