Thursday, July 5, 2018

18 Whacky Things About the Kingsway Entertainment District Land Use Appeals – Number 12 Will Blow Your Mind!

The so-called "Kingsway Entertainment District"
"Let the wild rumpus start"
    -"Where the Wild Things Are"

#1 – Council selected the Kingsway site for an arena 9 months before land use applications were approved.

Yes, that’s right – Greater Sudbury Council had already pre-determined that the Kingsway site would be the location for a new arena/event centre long before applications for rezoning were ever submitted by the landowner.  Council made this fateful decision on the night of June 27, 2017, after having gone through a months-long site selection process that did not include an opportunity for public input. 

PWC, a consulting firm, had recommended a downtown location for a new arena/events centre, but the first motion to go before Council that night was defeated in a 6-6 tie. It was a motion for the City to locate the arena in the downtown.  A second motion – for the Kingsway location - was ultimately approved by Council via a 10-2 vote. 

Many Councillors opposing the downtown location were vocal with their reasons: the Kingsway site offered an opportunity for other entertainment uses to co-locate, such as a casino, motorsports park, maybe a drive-inn, waterpark, soccer bubble, etc.  There was ample opportunity for convenient, free parking. They wanted to see this greenfield site transformed into a new entertainment hub – but when pushed by the Mayor to include the other entertainment uses as site selection pre-requisites, Councillors defeated the Mayor’s motion. 

#2 – Before voting to approve land use application, the City of Greater Sudbury had entered into an options agreement with Kingsway developer Dario Zulich to purchase the arena lands for the below-market price of $10.  A condition of that agreement stated the land must be rezoned first.

Some might think that an agreement with a developer to acquire almost 30 acres of property for the bargain-basement price of $10 – subject only to the lands being rezoned – might have given Council a bit of an incentive to give the nod to the developer’s land use applications.  Others might think that this deal had no bearing on Council’s approval of the applications.

But what can’t be denied is that on August 22, 2017, the City of Greater Sudbury passed a by-law to authorize the purchase developer Dario Zulich’s property for an arena – subject to the City first rezoning the property to permit an arena (By-law 2017-149).

#3 – The City of Greater Sudbury entered into a business partnership with Kingsway developer Dario Zulich and Gateway Casinos – to split costs for development matters 3-ways.

Sharing the costs of development among interested parties certainly sounds like a great way to save everyone money – especially when the taxpayer might otherwise be on the hook.  But providing taxpayer money to further the business interests of a private developer and a for-profit business enterprise is only permitted in certain circumstances as outlined in the provincial legislation.

Without using any of the legislatively prescribed mechanisms to circumvent the anti-Bonusing provisions of provincial legislation, on August 22, 2017 the Council of City of Greater Sudbury nevertheless passed a by-law to enter into an agreement with 1916596 Ontario Ltd. (a company owned by Dario Zulich), and Gateway Casinos, to split the costs of development three ways.  No analysis was undertaken to determine whether this 3-way split was equitable, or whether the City might end up paying some of the costs of development that might otherwise be borne by private interests.

#4 – The City’s “Integrated Site Plan” for a casino, hotel and arena on the Kingsway was not a Site Plan under the Planning Act.

One of the first products emerging from the Greater Sudbury-Zulich-Gateway Casinos development consortium was the Integrated Site Plan – which went before Council for approval on November 22, 2017. Despite its name, the Integrated Site Plan was never intended to be a “site plan” as per Section 41 of the Planning Act.  Rather, it appears to have been nothing more than a design exercise.  Council’s “approval” of the Integrated Site Plan did not require any of the partners to ultimately adhere to the design concepts of the Integrated Site Plan (in the same way that an actual Site Plan binds developers).

The Integrated Site Plan was prepared by Cumulus Architects – Gateway Casino’s ‘go-to’ consultant. The City selected Cumulus through a sole-sourced procurement process (there was no RFP).  Cumulus’ Integrated Site Plan was informed by a City-led whirlwind ‘public consultation process’ that took place over a single week (from announcement to last call for submissions).  Online submissions were facilitated by a single, non-open ended survey question that asked simply, “Are you excited about the future?”

Ultimately, Council approved the Integrated Site Plan at a time when none of the uses contemplated by the Plan were actually permitted on the site.

Why the City chose to forego the Site Plan process as prescribed in the Planning Act in favour of a non-binding process is unclear.  However, Greater Sudburians remain under the impression that the casino/arena/hotel will be built in accordance with this non-binding design plan.

#5 – Greater Sudburians were never consulted regarding whether a full-fledged casino was desired here.

Greater Sudbury presently has a “slots” facility, located at Sudbury Downs, in the former (pre-forced-amalgamation) Town of Rayside-Balfour.  Although this existing facility is identified in the City’s zoning by-law, Greater Sudbury’s Official Plan is silent on the matter of casinos.  Frankly, the issue just never came up – at least not until 2012.

In May, 2012, without notice to the public, Council voted on a motion to tell the Province that the City was interested in hosting a casino.  Another motion was ultimately endorsed by Council in August, 2012, also without the benefit of public notice. By the time the City went to the public for comment on the proposed location of a new casino facility, the decision about whether to host a casino was already made – without the benefit of any public process to ascertain the will of Greater Sudburians to tolerate what some have called a “toxic land use” in our midst.

The public consultation exercise focused on four potential areas for a casino: Sudbury Downs; two downtown locations; the Four Corners; and, a location on the Kingsway at Barry Downe Road.  That public consultation process built a strong case for the Sudbury Downs. The site ultimately selected by the City – the Kingsway Entertainment District – was never the subject of any public consultation exercise, right up until the time that land use applications were submitted under the Planning Act.  By that time, however, the City had already entered into a 3-way spending agreement that included casino operator Gateway Casinos – and had in fact already spent money developing the Integrated Site Plan.

#6 – The Kingsway lands are already zoned for an arena.

Well, yes and no.  Back in 2014, Dario Zulich applied for and received a zoning amendment for some of the lands within his 2010 draft approved (but still-not-final approved) industrial subdivision.  This 2014 amendment allowed for hotel and restaurant uses on certain Zulich lands designated General Industrial in the City’s official plan, and zoned for light industrial uses.  The rezoning also permitted a  “recreation centre, commercial”, which sounds like it might be something like an “arena” – except for the fact that an “arena” is a defined term in the City’s zoning by-law – and it’s not a component of “recreation centre, commercial” zoning, which is defined as,

“An establishment where participatory athletic, recreational or physical fitness facilities are provided for gain or profit, and includes without limiting the generality of the foregoing, a commercial fitness centre and exercise spa or club, a commercial ice or roller skating rink, a commercial squash or tennis or golfing facility and a commercial outdoor recreation area, but does not include a riding stable, place of amusement or amusement park.”

In contrast, “recreation and community centre” is defined as,

“A building or structure, or part thereof, owned or operated by a private club, a non-profit or charitable institution or a public agency including a facility developed or operated as a public-private partnership, where facilities are provided primarily for athletic or recreational activities or events, and includes, without limiting the generality of the foregoing, an arena and a public pool.”

The difference seems minor, but it’s not.  The first use permission – the one Zulich sought and received in 2014 – is for a private, for-profit enterprise.  The second permission refers generally to public ownership and use, and fits within the definition of a “public service facility” as per the Provincial Policy Statement.

A lack of understanding of this nuance might have led to some of the public misunderstandings related to whether the Kingsway site was “already zoned for an arena” – a line that was repeated by land developer Dario Zulich over and over again in the lead-up to the City’s site selection process.
So while it is true that Zulich could today build on his property something that looks a lot like an arena, he would have to do it by himself, without a partnership with the City.

#7 – The Kingsway lands were once subject to land use applications to permit a casino and an amusement park.

Back in 2014, when Zulich applied for a rezoning to permit a private arena-like facility, he also applied to amend the City’s official plan and zoning by-law to permit a “place of amusement in the form of a casino” and an amusement park.  Ultimately, these applications were withdrawn.

Interestingly, given that the application for a private arena-like facility largely flew under the public’s radar at the time (there were no public submissions made in response to the City’s notices), it is also likely that these other applications might have been approved by the City in 2014 with little public discussion or debate, had they not been withdrawn by the developer.

And the Kingsway Entertainment District might today already be under construction.

#8 – Landowner Dario Zulich never authorized his agent, Karl Tanner, to make land use applications for a casino or arena.

Strangely, the application forms provided to the public by the City of Greater Sudbury are missing the signature of the landowner, Dario Zulich, in the area where the landowner must confirm the appointment of an agent to act on his behalf.  That might not sound like a big deal, but the owner’s authorization to have an agent act on the owner’s behalf is prescribed by in provincial Regulation. It is an element that an approval authority, like the City of Greater Sudbury, would look for when determining whether an application is complete.

Karl Tanner, MCIP RPP, of Dillon Consulting is identified as an “agent” on the applications – but Zulich’s signature and the signing date are missing.

Despite this omission, the City opted to accept the applications anyway.  The unsigned applications were ultimately forwarded to the Local Planning Appeals Tribunal as part of the City’s “complete” public record.

#9 – Dillon Consulting – which employs Zulich’s agent, Karl Tanner – was hired by the City of Greater Sudbury to prepare technical background reports in support of Zulich’s private development applications.

Yes. Seriously. The City appears to have hired the same consulting firm used by land developer Dario Zulich to do background work on these applications.
Two memos prepared by Karl Tanner to the Manager of Development Approvals, City of Greater Sudbury, in support of the arena rezoning application (one dated December 4, 2017, and the other dated December 5, 2017) both indicate that “Dillon Consulting Limited has been retained by the City of Greater Sudbury, in conjunction with 1916596 Ontario Ltd., “the present owners”, to assist in obtaining the necessary planning approvals to allow for the development of the Subject Lands…

Dillon Consulting also prepared the Planning Justification Report, submitted by Zulich in support of the applications for a casino.  In this capacity, it appears that Dillon might not have been hired by the City, as it’s indicated in this report that, “Dillon Consulting Limited has been retained by Gateway Casino and Entertainment Limited, “the developers”, in conjunction with 1916596 Ontario Ltd., “the present owners”, to assist with professional planning opinion in support of …applications.

Dillon Consulting also prepared the Traffic Impact Study, submitted in support of the casino and arena development applications filed by private developer Dario Zulich.  On Page 1 of the Traffic Impact Study, it’s indicated that, “Dillon Consulting Limited has been retained by the City of Greater Sudbury to undertake a traffic impact study for a proposed multi-function sports and entertainment complex…”  This study, and later addendums, predicts the anticipated traffic impacts from the development of a new casino, arena, hotel and other expected industrial land uses from the remainder of the subdivision build-out.  No other entertainment uses were assessed.

It is also important to note that one of the conditions of subdivision draft approval that private developer Dario Zulich has to fulfil before his industrial subdivision can be registered is the production of a traffic study.  With Dillon Consulting having completed this study on the City’s dime, it appears that Zulich will be off the hook to do his own study.

With Dillon Consulting working for multiple interests – the developer, the City, and the casino – is it any wonder Greater Sudburians have been expressing concerns about just who is paying for what to further the land development interests of private companies?

#10 – An arena is not permitted on the subject lands.

OK, that statement sounds like the entirety of the dispute between the City and the LPAT appellants.  It’s certainly something that came up time and again throughout the public process.

“The proposed use of an arena and event centre is not currently permitted in the General Industrial designation [of the City of Greater Sudbury’s Official Plan]…” 

That was certainly the contention of many of members of the public who gave oral testimony to Planning Committee before Council made a decision to approve the zoning by-law.  The conformity test is an important one, as Section 34 of the Planning Act is quite clear – the approval of zoning by-laws must conform to the Official Plan.  If a use isn’t permitted in a land use designation, you can pretty much throw conformity out the window.

So who is the above statement regarding land use permissions in the General Industrial designation from?  Interestingly, this sentiment was expressed by Karl Tanner, MCIP RPP, of Dillon Consulting – Dario Zulich’s agent.  And he expressed this sentiment not once, but 3 times – in memos to the City dated December 4, 2017 and December 5, 2017, and in a follow-up memo dated March 7 - the latter prepared after the first round of public consultation and specifically to respond to issues raised by the public - like Official Plan conformity!

But the City didn’t buy into Tanner’s professional analysis related to Official Plan conformity.  Instead, the City claims that because institutional uses are permitted by the plan “throughout the municipality”, they are permitted in the General Industrial designation.  Going forward at the LPAT, it’s that contention of the City’s that will be subject to further debate.  Perhaps the appellants will call on Mr. Tanner to provide expert evidence in support of their position that the zoning amendment doesn’t conform to the Official Plan!

#11 – The City’s case regarding the arena hinges entirely on the interpretation of a single sentence in the municipal official plan.

A significant element of the City’s planning rationale for approving the arena in the industrial subdivision has to do with the City interpretation of Official Plan policies for the locating of institutional uses.  Despite that many, including some members of municipal Council, consider the arena a tourist-based commercial use, it’s not – it’s a public service facility, which can be described as “institutional”.  That’s one thing that the parties to the matter at the LPAT all seem to agree on.

But with regards to Official Plan conformity – which must be demonstrated for a zoning by-law amendment to be approved -  the City hung its hat on a one-sentence policy found in Section 4.4 of the Plan, which reads, “Institutional uses are permitted throughout the municipality in accordance with the needs of area residents and policies set forth below.”

The City’s interpretation of “throughout the municipality” appears to be very comprehensive in nature – interchangeable even with the notion of being permitted “throughout the community” – a statement made in the Staff Report describing the policy environment for institutional uses.  The City seems to be under the impression that institutional uses can freely locate anywhere in the City, subject to some minor site assessment policies: services have to be available; traffic considered; parking provided on site (which is interesting because clearly that’s not going to be the case here); transit can be provided; landscaping; and the use can be integrated into the area and is compatible with surrounding uses.

But it’s absurd to think that a 5,800-seat arena could go anywhere in the City. Would it be ok on unfarmed prime agricultural lands or within provincially significant wetlands? Sure, why not – as long as services are available. It won’t conflict with surrounding uses if there are none. So despite the other policies of the Official Plan which prohibit development in these sorts of areas, if you follow the City’s interpretation of “throughout the municipality”, institutional uses ought to be greenlighted.

A more nuanced read of the Official Plan reveals that policies pertaining to certain land use designations identify where institutional uses might be permitted.  And indeed, lands with those designations are located “throughout the municipality”.  But the General Industrial designation – which is the designation of the lands on the Kingsway – isn’t one of those designations.

And as indicated earlier, even Dario Zulich’s agent, Karl Tanner, doesn’t seem to think that an arena is permitted in the General Industrial designation.  The City really is on its own here.

The entirety of the City’s approval is built on an acceptance of their interpretation of “throughout the municipality”.  If the City is reading its plan wrong, then an arena (an institutional use) isn’t permitted in the General Industrial designation – and since zoning has to conform to the Official Plan, like a house of cards, the by-law approval will collapse, and the City will have to start over by first amending its Official Plan – a much bigger task, given the weight of policies which strongly suggest a new arena ought to locate elsewhere.

#12 – In Greater Sudbury, a pinball arcade is a more socially suspect land use than a casino.

There is one casino-like facility in Greater Sudbury – the Slots at Sudbury Downs in the former Town of Rayside-Balfour.  The Slots are zoned as “Open Space Recreational 2” in the City of Greater Sudbury’s comprehensive zoning by-law, which was updated in 2010.  The Open Space Recreational 2 zone permits “wagering facilities” and a “gambling casino” – neither of which are further defined in the by-law, but given the existence of the slots facility and the racetrack, it doesn’t take a lot of imagination to make the connections between zoning category and actual land use.

What’s not permitted in the by-law is a “place of amusement” – which is the land use permission now being sought by Dario Zulich to facilitate the construction of a casino.  A “place of amusement” is defined in the by-law as:

“A commercial establishment where indoor facilities are provided for participatory entertainment and amusement activities, or where exhibits are displayed for gain or profit, and includes, without limiting the generality of the foregoing, a bowling alley, pool hall, billiards parlour, arcade or game establishment, pinball arcade or wax museum.”

Neither a “wagering facility” or “gambling casino” are listed in the by-law as uses in the “place of amusement” definition, in comparison to the explicit reference to these uses in the “Open Space Recreational 2” definition.

While not permitted on lands designated General Industrial without amendment to the City’s Official Plan (which is why Zulich has applied for an OPA for part of his industrial property), “places of amusement” are permitted in all C2 and C6 (commercial) zones.  Lands within C2 and C6 zones include: the majority of the downtown; the Southridge Mall; the New Sudbury Centre; the power centre at Barry Downe/Kingsway; the Montrose Mall; the Val-Est Mall; Kathleen Street in the vicinity of Tucos Tacos; and the downtowns of Chelmsford and Capreol - and many other local commercial locations.

But there are some restrictions for some of the “places of amusement” uses, presumably due to their potential negative influences on vulnerable existing land uses in the vicinity.  You have to be careful with some of these uses, after all.  Of interest is the additional locational restrictions the by-law imposes on pinball arcades – where a pinball arcade consisting of more than 20 games can’t locate within 300 metres of a public school.

There is no similar restriction for casinos.

Possibly because a ‘gambling casino” just doesn’t appear to have ever been contemplated as being a ‘place of amusement” as per the by-law.

But right now, it looks like the City of Greater Sudbury harbours a greater fear of pin ball arcades than casinos!

#13 – A privately owned and operated overflow parking lot is needed on the Kingsway Site to accommodate forecast demand.

One of the big knocks against locating a new arena/event centre in the City of Greater Sudbury’s downtown was a lack of parking.  Free and abundant parking was cited again and again by members of Council at the June 27, 2017 meeting where the Kingsway was ultimately selected as the home to the new arena. 

But the Traffic Impact Study prepared by Dillon Consulting revealed an interesting flaw: although the hotel, casino and the arena uses could accommodate on-site the number of parking spaces required by the by-law for these uses, that still wasn’t enough parking to meet projected demand.

Say what?

Normally, parking requirements identified in a by-law for particular uses are accommodated on site – except in circumstances where parking is readily available elsewhere, either through public or private parking facilities.  This requirement is even found in one of the few elements that the City has to consider when locating a new institutional use (like the arena) on lands “throughout the municipality”: “adequate parking for the public is provided on-site.”

Given that the Kingsway Entertainment District is being developed in a greenfield situation, it would seem that there might be ample opportunity to accommodate all necessary parking on the sites for the casino and the arena. And looked at one way, that’s what’s happening – all of the spots required via zoning, based on gross floor area of the proposed uses – can be accommodated on site. 

But based on actual projected need, not so much.  Which seems to suggest that the minimum standards provided for in the by-law are deficient.  And that may be because the wrong land use standards are being applied here – which is certainly the case for the ‘place of amusement’ zoning permission being sought for the casino.   The Traffic Studies prepared for these proposals indicate that almost twice as many spaces are needed to accommodate the casino than are required by the by-law and available on site.

Because of this deficiency in parking, the City and developer struck upon using another industrial lot in the draft approved subdivision for the creation of an overflow parking lot.  That parking lot is intended to remain available until such a time that it is ready to be used for something different – hardly a long-term solution.  It does not appear that other options were ever looked at, such as building above- or below-grade parking facilities – and charging fees to recuperate costs   You know. The sorts of things that municipalities elsewhere are doing routinely in order to meet challenges related to sufficiently storing cars in the short term.

Of course, had the City opted to locate the arena downtown, parking wouldn’t have been issue.  There’s been an arena operating in the downtown for almost 7 decades, and while parking might be perceived as a problem by some, the fact is that arena attendees always seem to be able to find somewhere to park.

#14 – Free Parking? Not likely.

That’s right – one of the primary selling features of the “Kingsway Entertainment District” was this idea of abundant and free parking.  But as we’ve seen, the sites selected just aren’t going to be big enough to accommodate everyone, so the City passed a zoning by-law amendment to permit overflow parking on other lands owned by Dario Zulich.

The by-law adopted by Council is clear: a parking lot shall be permitted on Zulich’s lands.  And just in case there is some doubt as to what a “parking lot” is (and trust me on this – there is some doubt with regards to whether a ‘parking lot’ is an employment activity or just a place to store cars – but that’s another story), the City’s Comprehensive Zoning By-law provides a helpful description.

“Parking Lot: a parking area which constitutes the main use on a lot and where vehicles are parked for remuneration.”

Do you see the issue here?  What about after reading the definition of “parking area” – which isn’t the land use permission the City authorized here – but it is one that they could have authorized.

“Parking Area: An outdoor, indoor or underground area which is provided on a lot for the parking of one or more vehicles and includes parking aisles, but does not include driveways or any area where vehicles for sale or repair are kept or stored.”

The casino and the arena will both have “parking areas” on site – parking facilities that aren’t the main use of the site, but are needed to accommodate the minimum parking provisions of the by-law.  But the overflow parking spaces will be the primary use on the lot – and that’s in keeping with the “parking lot” definition.

So primary use as a parking lot is a requirement for a “parking lot” But did you catch the other requirement as per the by-law definition?  That’s right: “where vehicles are parked for remuneration”.  And that means to be compliant with the by-law, Mr. Zulich and/or subsequent landowners will have to charge for parking.

And since the addition of a "parking lot" was applied for and granted (subject to appeal), what else can one conclude except that's exactly what the plan is.

#15 – The only economic impact analysis undertaken prior to Council approving the land use applications was one conducted by members of the public, and not the City.

Yes, that’s right: the potential economic impacts of replacing an existing downtown arena with a $100 million brandspanking new facility in an industrial area on the City’s urban fringe were not studied by the City before a decision was made.  Instead, it was left up to local business owner Tom Fortin and the Downtown Sudbury Business Improvement Area to pick up the tab for an economic impact analysis – a tab that some have suggested might have been as high as $60,000.

Whatever the costs, the urbanMetrics analysis of potential impacts was well worth it – at least in the sense that it was a good thing someone decided to look at potential impacts before a 50-year decision impacting the City was made.  The urbanMetrics report revealed that relocating the arena out of the downtown would deal a devastating blow to the economic viability and vitality of the downtown.  Among other findings, urbanMetrics concluded that 200,000 annual discrete trips to the downtown were being made due to the presence of the existing arena – all of which would be lost due to relocation.

This report was available to the City prior to the final planning report presented to the City’s Planning Committee, but that report had nothing to say whatsoever about the urbanMetrics report.  What little was said at all about economic impacts was focused on the PWC report that had been prepared in the spring of 2017. PWC concluded that a new arena would be viable in the City (although it would operate with estimated losses of $800,000 a year – a little more than the current operating loss of the existing Sudbury Community Arena).  But PWC never made an effort to assess potential economic impacts from the development on the community – that was never in their mandate.  And yet the applicant’s planning consultant and the City have both referenced the PWC report as being an appropriate economic analysis.

The reality is there has been no fulsome economic analysis undertaken for projects valued at approximately $160 million – including costs of as much as $100 million of taxpayers money. 

#16 – In selecting the Kingsway site for the new arena, Council blatantly ignored the clear direction of the City’s recently-adopted Economic Development Plan.

Well, that’s not entirely accurate – the City did cite one section of "From the Ground Up" - the City's Economic Development Plan - as ultimately supportive of the decision to relocate the arena from the downtown and onto the Kingsway site (Goal 7 of the Plan: to make Greater Sudbury “one of Ontario’s top tourist destinations that the development of a new arena/entertainment complex could help unlock the potential for continued growth and economic prosperity in the community”). 

But it is fair to say that this support was cherry-picked – had anyone bothered to read a little further, they would have encountered this statement in Goal 7 of the Plan:

During the consultation process it was suggested that the development of a new arena/entertainment complex could help unlock the potential for the continued growth and economic prosperity of the community.  This would complement Greater Sudbury’s existing festivals with an additional venue for other concerns, entertainment events, live performances, and sporting events, not to mention its potential for expanded convention business.  There are still a number of opportunities that exist in the tourism sector that Greater Sudbury can leverage to help make it one of Ontario’s top destinations.  For example, the Downtown Sudbury Master Plan calls for promoting tourism in the downtown core and creating destination attractions such as a “Signature Arts District” that will draw visitors from across the region.  Consideration should be paid to investing in the necessary infrastructure to support the added visitors to the area.  Continued growth and diversification of the region’s retail sector will also maintain and enhance Greater sudbury’s regional capital status as well.

And to achieve the results identified in Goal 7, here’s Action Item 7.1.1

7.1.1 – Develop a multi-purpose facility (or facilities) for arts, culture, business and sport in the Downtown core, with consideration for the following high-priority uses:
Conference facilities
Performing arts centre
Arena/sports complex
Art gallery

The public consultation process that informed the development of “From the Ground Up” was extensive, and championed by Mayor Brian Bigger.  Ultimately, the Economic Development Plan built on the policies and direction found in other city-building documents, including the Downtown Master Plan and the City’s Official Plan.  In this context, the decision on June 27, 2017 to locate a new arena on the Kingsway was a betrayal of the long-standing vision for promoting economic prosperity in the community – a vision informed by public input and engagement over decades.

But on the night that Planning Committee approved its recommendation to Council on the Kingsway land use applications, Planning Committee Chair Deb McIntosh asked staff point blank what the status of the plans like the Downtown Master Plan and Economic Development Plan were.  Staff candidly responded that those plans had no status, as the policy recommendations found in those two plans, dating from 2012 and 2016, had not been incorporated by amendment into the Official Plan.  So basically Planning Committee was advised that they were under no obligation to consider that direction, because the City has been negligent in creating the appropriate policy environment via Official Plan update.

Of course, the City has been negligent.  There is a requirement under the Planning Act a municipality update its plan every 5 years (recently changed to 10).  The City of Greater Sudbury’s Official Plan was approved in 2006, and the City began the process of updating the plan in 2011.  But that process was stalled, and it wasn’t until the spring of 2018 that Council adopted the first phase of the OP update.

And then there’s this: Staff’s response completely ignored the Northern Ontario Growth Plan, which read,

4.1, Communities – Preamble - …achieving a healthy, prosperous future for the North.  This begins at the local level with establishing a clear vision for each community’s future, and mapping out a path to achieve this vision.  Official Plans, community economic plans and the participation in community planning efforts are effective tools and approaches to ensure citizens’ and businesses’ view are reflected in their communities’ future economic and long-term sustainability.

So the Growth Plan says that decisions are to be informed by “economic plans” and other planning initiatives that have benefited from significant community consultation. Kind of like the Economic Development Plan and the Downtown Master Plan.  But so what, that’s just the Growth Plan, right?

Well, the “so what” is that all decisions of Council related to land use applications have to conform to the Growth Plan.  It’s going to be interesting for the City to try to square the circle that a decision made which explicitly ignores the City’s own Downtown Master Plan and Economic Development Plan is in any way, shape or form in conformity with Growth Plan policies that say Councils need to consider those plans.

#17 – Council approved of the zoning amendment by-laws so much, they adopted them twice!

All of the land use applications initially went to Council for a decision on April 10, 2018.  There was one application to amend the Official Plan to permit a casino (Amendment No. 92), and three zoning by-law amendments – one each for the casino (2018-61Z), arena (2018-63Z) and parking lot (2018-62Z).  The City issued Notices of Council’s decision to approve all of these applications on April 16, 2018.

But on April 24, 2018, new by-laws were in front of Council – by-laws to amend the zoning amendments! It looks like the City had missed including some key language in the by-laws adopted by Council on the 10th.  So new by-laws were adopted to amend the earlier by-laws for the casino (2018-70Z), arena (2018-72Z) and parking lot (2018-71Z).

OK, no big deal, right?

Wrong. First off it’s not clear at all that the City has any jurisdiction to amend a by-law that isn’t actually in effect.  And since the original by-laws were still in the appeal period (and were, in fact, ultimately appealed), there is no question that those by-laws had zero status in reality.  So what, exactly, was the City amending with the new by-laws?

Second, when amending the original amendments, the City issued new Notices of Decision on April 25, 2018 – and those notices informed the public that they had up until May 15, 2018 to file appeals with the LPAT.  That might sound like a fair thing to do – to give everyone a little extra time to digest the changes (the original last date for appeals was May 7, 2018), but the reality is City is bound by legislation to identify just 20 days from the issuing of Notice as the “last date of appeal” to the LPAT.  They can’t change the timeframe, as appeals made beyond those 20 days are not considered appeals.

But May 15th was Day 20, if you count from the date of the second Notice, right?  Sure it is.  But all of this then begs the question, which decision of Council is the one that the appellants appealed (and will be heard by the LPAT) – the April 10th decision to adopt the amendments, or the April 24th decision to amend the adopted amendments?

If the OMB were still in place, none of this might matter, because the Board would have held a hearing de novo – and if it liked what it heard and agreed with the applicant and the City, they would have directed a new by-law to be prepared, which the Board itself would have endorsed.

But now this really matters, because there are no hearings de novo under the LPAT for these types of applications.  Instead, appellants are in essence appealing the decision of Council on the basis that the decision isn’t consistent with the Provincial Policy Statement, doesn’t conform to a provincial plan (like the Northern Ontario Growth Plan) or to a municipal Official Plan.

But don’t take my word for any of this.  Maybe instead refer to Page 5 of the LPAT’s “Appeal Guide ‘A’” for filing appeals, which indicates:

“If you wish to file an appeal, you must submit your appeal within the legislated timelines with the required filing fee and completed appeal form, including grounds for appeal. In describing your grounds for appeal, you must include which part of the decision of the municipality/approval authority being appealed: Is inconsistent with the Provincial Policy Statement; Fails to conform with or conflicts with a provincial plan; or, fails to conform with an applicable Official Plan.

So the question regarding exactly which decision of Council was appealed and will be heard by the LPAT is one that someone is going to have to figure out.  Speaking as an appellant to the arena rezoning, I filed my appeal prior to the May 7th last date of appeal – and although I referenced both by-laws in my appeal, I only paid for one appeal – and was clear that my appeal pertained to the April 10th decision of Council. 

But not all of the appellants got their appeals in before May 7th….

#18 – There is no such thing as the “Kingsway Entertainment District”

I know that we’ve been hearing a lot about the so-called “Kingsway Entertainment District” (uhm, it's in the header to this post...) – but it’s not actually a thing.  Well, not actually a thing that exists anywhere in policy that someone could turn to and say, “Look – here’s all of the new entertainment uses planned for those specific lands on the Kingsway, and this tells us how it’s all going to play out.”

I get that the City has paid for a website to promote the “Kingsway Entertainment District”.  I understand that the concept of a new entertainment district was referred to time and again during the June 27, 2017 meeting where Council selected the Kingsway for the new arena.  I know that since then, Council and the City have been working hard to convince Greater Sudburians that there will be a new entertainment district on the Kingsway.  And I know that this concept has been one that landowner Dario Zulich has been talking about for years now.

But it doesn’t exist.

See, here’s how it works.  If you have a vision to use your lands in a certain way that is not presently permitted by an official plan, you first have to amend the official plan.  Mr. Zulich has been talking about the use of his Jack Nicholas Business Park lands on the Kingsway for an “entertainment district” for years – first as part of the True North Strong development initiative.  Now he’s got City Council to buy into the concept, it’s been rebranded (re-re-branded?) as the Kingsway Entertainment District – and a few uses are currently working their way through the approval process, namely a casino, arena and parking lot (and there’s nothing like a parking lot if you’re in the mood to be entertained!). 

But that’s it.  We’ve heard about a motorsports park – and Dario Zulich has promised to give the Sudbury District Motorsports Association 40 acres of his property in order to make a motorsports park a viable use.  We’ve heard about soccer domes, drive-in theatres, waterparks – more dreamed of than planned for admittedly – but clearly some members of Council had bought into this vision when they rejected the downtown as the site for a new arena back on June 27, 2017.

There’s been ample opportunity for Dario Zulich to file with the City applications to permit these and other entertainment uses on his property – but he hasn’t.  The lands are designated for an industrial subdivision.  If the ‘plan’ were to move forward with entertainment uses, why hasn’t the landowner applied for the land use permissions for those uses?

Indeed, those other uses weren’t even evaluated by Dillon Consulting’s planning and traffic experts hired by  - well, Mr. Zulich and/or the City and/or Gateway Casinos.  Those expert analyses assumed that the remainder of the subdivision would be used for industrial purposes.

OK, so the landowner has been negligent in pursuing this ‘entertainment district’ vision – but isn’t it expensive to make land use applications to change use permissions?  Well, sure there’s a cost to private developers, but if the City were to initiate those changes on its own, costs could be minimized.
And the City of Greater Sudbury absolutely has a process to initiate those sorts of changes on its own initiative.  The City could have created a “Kingsway Entertainment District” policy environment as part of the 5-year review of its Official Plan.  But it didn’t do that.  When Council voted to adopt the 5-Year Official Plan review on May 28, 2018, it voted to confirm the existing industrial land use permissions on the site.

Yes, that’s right: although the City has been spending taxpayer’s money to promote the “Kingsway Entertainment District” and although some members of Council have been touting the expected economic benefits for the City that the “KED” will create, Council, when given the opportunity to actually create the KED in policy and by re-designating the Kingsway site, they chose not to do that!

If you support the vision of a new entertainment district on the Kingsway, you might want to ask your Councillor why Council failed to support that vision and instead re-affirmed the existing industrial land use permissions. 

And finally….

There’s a lot more whackiness going on with these development applications (whatever happened to the convention centre that Council was going to make the casino operator pay for anyway?), but this is about all that I can handle today. 

(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)

Tuesday, July 3, 2018

The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 2: For the Record

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)