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)

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