Wednesday, October 11, 2017

My Tax Dollars Hard at Work or Hardly Working? A Quick Analysis of the Recent Moonglo Zoning Decision

OK, so I’ve read the recent Ontario Municipal Board (OMB) decision about the proposed change in zoning in the Moonglo neighbourhood.  What a gong show for the City this whole exercise proved to be.  And as a taxpaying resident of the City of Greater Sudbury, I have to question just what my tax dollars are going towards supporting.

The Board was presented with uncontradicted expert evidence that the zoning was in keeping with provincial planning policies and with the City's own Official Plan.  The City tried to have their hired-gun planner approved by the Board as an expert witness, but that was challenged by the appellant, and the Board ruled that former City Planning Director of Development, Mart Kivistik, could not provide “expert testimony”.  And that’s a big deal in front of the Board.  Expert evidence is given more weight than that of lay-people.  Kivistik’s problem was a big one – it wasn’t so much that the Board didn’t believe what he was talking about (he has years and years of land use planning experience), it was that he was involved in opposing the rezoning application in front of Council.  In short, he had already demonstrated a bias, and therefore could not be considered to be in a position of providing the board with unbiased expert testimony.  The City should have been aware of this taint before trying to get their so-called “expert” qualified in front of the Board.  The Board has really been cracking down on ‘planners as advocates and experts’ in recent years.  They should have turned to another planner who was not involved in the matter and let that planner come to their own independent conclusion.  Of course, maybe they tried that – and couldn’t find a planner to support Council’s position, so they were left with Kivistik or no one.

Remember: the City had to hire someone from outside of the City to give evidence here, because municipal planning staff supported the application.  Mauro Manzon, a municipal planner, actually appeared under summons to give evidence to the Board in support of the development proposal.  From my taxdollars point of view, I in part paid for Mr. Manzon and the City’s Planning department to give evidence in contradiction to Council’s decision – and I then paid again for a hired gun planner to give evidence in favour of their decision.  That’s bad enough, but I get it, sometimes it happens – municipal planners aren’t always right, and sometimes when Council makes decision in opposition to their professional recommendations, it’s Council’s decision that the Board ultimately sides with – often with the assistance of the hired gun planner.  But in this case, the City’s hired gun came unequipped with ammunition – he was not qualified as an expert – which leaves me scratching my head with regards to just what did the City pay for.  My tax dollars don’t seem to have been used to their highest and best ability here.

It gets worse.  Kivistik pretty much hung his hat on the notion that the City’s Official Plan suggests that medium and high density development ought to locate along arterial roads (and Moonrock is not an arterial).  Further, he suggested that the building did not fit in with the neighbourhood, which is primarily low density.  The appellant’s planners and designers made a case that the design of the building was put together in such a way as to minimize visual impacts with the surrounding neighbourhood.  They stated that they had satisfied all relevant policies in the Official Plan, including the ‘neighbourhood compatibility’ one.  Kivistik had a weird interpretation of what the OP says about ‘compatibility’ – almost suggesting that the policies are there to protect the stability of low density residential neighbourhoods – which is completely beyond belief for anyone somewhat familiar with the City’s Official Plan.  The Official Plan sets out only two residential designations – Living Area 1 and Living Area 2.  Both permit all forms of low-density residential development, subject to policies (including neighbourhood compatibility).  All of Moonglo is within Living Area 1 – which in the former City of Sudbury actually permits ALL forms of residential development as of right – low, medium and high density.  Kivistik argued that at 25 units per hectare, which exceeded the 9 units per hectare currently found in most of the rest of Moonglo, that the development was medium density and incompatible with the low density neighbourhood.

The Board sided with the developer’s experts on neighbourhood compatibility, and stated clearly that compatibility isn’t ‘stability’ – essentially that the OP contemplates change occurring, subject to policies. The use fits in well with the existing neighbourhood, due to buffers, design, etc.  But it was on the notion of low vs. medium residential that the Board gave Kivistik a major knock – by pointing out that based on Kivistik’s own testimony that the development would have a density of 25 units per hectare, that it should be considered “low density”, not medium – because the City’s Official Plan caps low density development at 36 units per hectare.  How no one on the City’s side caught this before Kivistik presented his evidence is, shall we say, very odd.  When you hire an expert – even one that ultimately gets disqualified – a review of testimony and evidence being presented should really occur first in order to avoid actually presenting evidence that supports the opposition – particularly evidence that you are making the cornerstone of your argument.  Again, my tax dollars appear to not been hard at work here.

The appellant’s traffic engineer presented these facts, which were undisputed by any expert at the hearing: that the seniors complex would generate less traffic than the previously approved plan of subdivision; that Moonrock Avenue is operating only at 20% of its current capacity; that the design of the road is more than sufficient to accommodate the additional traffic load.  Again, this expert’s evidence was uncontradicted by any other expert.  Although the Moonglo residents raised significant concern with traffic issues, and having a copy of the traffic study in their possession for at least a year in advance of the hearing, they themselves did not hire an expert to contradict the findings of the appellant’s expert.  The City did not provide any expert witness to contradict the appellant’s witness – likely because City staff had already accepted the findings of the traffic report and even though the residents believed traffic was going to be an issue, there was no legitimate case that could be made in support of opposing the traffic report.  Keep in mind, Council was in part swayed by the resident’s concerns about traffic when they refused the zoning proposal – and yet the City did not mount any defence based on traffic.

With regards to transit – or more specifically, the lack of transit to service the development – the Board, in a kind of backhanded way, took a bit of a swipe at Moonglo residents, although they may not perceive that happened from the anodyne language used by the Board.  First, let me back up for a moment.  Kivistik and many area residents told the Board that the location for this development was less than ideal because the closest transit services were about 1 kilometre away.  I have to admit that when I was following this proposal from afar, I too expressed concern about the lack of transit services.  Kivistik and residents gave evidence that a senior’s complex should be located in proximity to transit – which kind of seems sensible, right?

Well, the Board didn’t buy it.  First, there are no policies in the Official Plan that direct senior’s residents to locate in proximity to transit.  While higher density development is encouraged to locate along arterials (which are more likely to have transit access), that’s just a “should” in the OP and not a “shall” – and this specific development proposal is not considered “high density”.  Still, there are provincial policies which the Board considered when it looked at transit.  The Board, while acknowledging that seniors are unlikely to walk a kilometre to catch the bus, essentially said that those active transportation policies were all fine and good, it was likely that seniors living in this facility would be car dependent.  Goodness knows with a 1.5 parking spot per unit requirement – leading to over 250 parking spaces on-site, people living in this development will have ample space to park their cars.

So that’s the swipe at Moonglo residents.  Do you see it?  The Board essentially said, “Look, residents: you live in a neighbourhood that is car dependent – almost completely devoid of transit.  Yet somehow you manage.  Why should you hold other future residents to a higher standard, and expect them to be transit-dependent when they make a decision to live in a neighbourhood where you need a car or two to get around?  Why these people – and not you?”

I get the Board’s argument here – although I still hope that the City decides to provide transit to this new development and throughout Moonglo.  Anyway, the Board was right to call out the double-standards of area residents, even if it did so in an opaque manner.

There are a number of lessons here for others to learn.  The first is: if you oppose a development proposal in the City, DO NOT rely on the City to advance your cause for you.  We saw this play out slightly differently with the recent OMB decision over the Keast subdivision, where the City changed its mind at the 11th hour and entered into a settlement with the appellant that saw many of the good planning principles put into the subdivision approval at the request of residents completely discarded – despite what Council had publicly conveyed to residents when making its decision.  By changing course at the last minute, residents could not mount a proper defence, even with experts hired and on hand who might have.  In the Moonglo case, I find it very difficult to understand why the residents wouldn’t have got together prior to the hearing, formed some kind of organization, petitioned the Board for Party status (which they almost certainly would have received) and hired their own experts to oppose.  That’s what you do if you’re serious about a neighbourhood issue.  I can only conclude that either the residents seriously didn’t have a clue about any of this (and the participation of Mart Kivistik, a former City Planning Director suggests otherwise), or they were somehow hoodwinked by the City – perhaps with a suggestion along the lines of, “don’t worry, we’ve got you covered”.  And maybe the City really did think that.  They tried to get Kivistik qualified as an expert. But ultimately they failed - and they should have realized that they were likely going to have a problem with Kivistik in the first place.  Anyway, I am speculating here, I really don’t know what happened, but it seems to me that if any group of citizens could have got their act together, the good residents of Moonglo would be high on that list – especially with an ex-City Planning Director leading the opposition.

The second one is that when Council bends to the will of residents and makes a decision that is not supported by planning rationale, actual facts and evidence – and instead bases its decision on conjecture, rumour and made-up nonsense – we taxpayers pay for it.  Several times over.  Thank goodness the developer isn’t going after the City for costs on this one – because I think that they could have mounted a credible case to the Board that the City was really just fooling around and pretending to mount a credible case.  The lack of experts suggests that didn’t happen – and the lack of any intention to ever give evidence contrary to the developer’s traffic report (with traffic being the crux of the argument made by the residents) would have bolstered a case for costs.  So we taxpayers dodged a bullet there.  Anyway, we would not have been in this position had Council listened to evidence and not made a political decision in substitution of a land use decision.  This kind of thing happens too often.  Sometimes, it’s warranted – there really are facts that are in dispute when the matter is in front of Council.  This clearly wasn’t one of those times – no hard evidence was ever presented to Council. Those opposed hung their hats on ‘neighbourhood compatibility’ – forgetting that the Official Plan was deliberately designed in a way so as to accommodate a wide range of densities just about everywhere – even in Moonglo.

(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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