Tuesday, September 25, 2018

The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 4: The Strong Case Against a Casino

If matters leading our municipal Council to decide to throw away a decade's worth of direction for a new arena as articulated in our land use planning and economic development documents in favour of a choosing a failed industrial property for a marquee piece of public infrastructure (a community arena/events centre)  – if those matters were questionable, and made in absence of any public process...Well, you ain't seen nothing yet.

I've chronicled my recent experiences at the LPAT so far in 3 parts of this blogseries: "The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 1: In the Beginning," and "The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 2: For the Record," and "The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 3: Valid Appeals and Municipal Contempt for a Public Process" along with my supplementary, "18 Whacky Things About the Kingsway Entertainment District Land Use Appeals – Number 12 Will Blow Your Mind!"  In Part 4, I'm going to touch on some things that have been going on behind the scenes that I've been unaware of - but which are now seeing the light of day thanks to the appellants to the Kingsway Casino.

Let's talk about the casino for a moment. I need to make it very clear that I am not an appellant to the Official Plan amendment or the zoning by-law amendment that, together, would permit a casino on industrial lands on the Kingsway. But there is obviously some overlap here with my appeal of the zoning amendment for the arena – and the parties that have appealed the casino (and the stand-along parking lot facility) have shared with me their Case Synopses (as I've shared mine with them). And oh boy – about that casino.

FYI, Casino-Free Sudbury has posted its Case Synopsis at its website.  Casino-Free Sudbury's appeal was filed by Tom Fortin on behalf of the group.

LPAT Jurisdiction - To Be Determined

First off, let me state that a lot of this blogpost is going to be focused on a matter that I don't think the LPAT ultimately has the jurisdiction to deal with. That doesn't mean that I don't believe the matter lacks legitimacy – just that, like the contempt displayed by the City in the lead-up to the April 10, 2018 decisions on the land use applications, I don't think the LPAT has the jurisdiction to make a determination on matters raised by Casino-Free Sudbury. No, this stuff is way legitimate. So much so that I believe a casino on the Kingsway is dead, dead, dead. At least over the next 5 years or so.

Gordon Petch, solicitor for the Downtown Business Improvement Area (BIA), Tom Fortin (Casino Free Sudbury) and Dr. Christopher Duncanson-Hales (together, the 3 casino appellants) has laid out a strong land use case as to why the LPAT should make a determination that the City's decision of April 10, 2018 isn't consistent with the PPS, does not conform to the Growth Plan for Northern Ontario, and does not conform to the City's own Official Plan. Affidavit evidence provided by two professional land use planners, which in part refer to the only economic impact analysis undertaken related to the casino and arena/event centre (the “urbanMetrics Report” - submitted to the City by Petch on behalf of the appellants before the matter was ultimately decided on by Planning Committee), should on its own lead to the LPAT to conclude that sufficient regard wasn't had by the City prior to Council's April 10, 2018 decisions, in my opinion (and hey, that's a big part of my own submission, so no surprises there).

'Notwithstanding' Official Plan Amendments - A Quick and Easy Tool, or the Unicorns of Land Use Planning?

But wait, there's more. Petch is also advancing the following land use argument which I think planners reading this blog might want to comment on. First, some background. There is no policy found anywhere in the City's official plan related to casinos or a gaming facility like the existing Slots at Sudbury Downs. Although the City of Greater Sudbury is on record stating that a casino should be considered a “place of amusement” as per the zoning by-law, there are no specific policies in the plan that address places of amusement. In fact, the Slots are Sudbury Downs are zoned specifically for a casino, but the underlying lands are designated Open Space.

Zulich, the private developer who submitted the applications for a casino, requested the City to amend its Official Plan to permit a casino, and to amend the zoning by-law to add a 'place of amusement' in the form of a casino to the list of permissible uses on the subject lands. The City adopted OPA 92 on April 10, 2018 that allowed for a casino on the subject lands through a 'notwithstanding' policy – essentially granting a missing land use permission for this one site.

But here's the problem for the City as Petch sees it: the absence of policy for the land use (casino) in the Official Plan means that a simple 'notwithstanding' clause added to the OP via amendment fails to meet the definition of an Official Plan as per Section 16 of the Planning Act. Essentially, if you are going to create a new land use (casino, in this case) via Official Plan amendment, the use has to either already be acknowledged in the existing plan, or have new policies developed via amendment to guide development. Because that's what Official Plans are supposed to do.

In this case, the City sought to add a new use in absence of any existing or new policy related to that use. And that's just not cool – or permissible as per the legislation, according to Petch.

And I think he's on to something. Back in June, 2017, after the Kingsway was selected as the site for the arena/event centre and, based on discussion around the Council table form that night, for a casino as well (and potentially for other entertainment uses), I urged the City to proceed by way of a Secondary Plan for the whole site (see: "Open Letter to Greater Sudbury Council re: Kingsway Entertainment District Site and Building Design and the Need for Public Engagement," Sudbury Steve May, August 15, 2017), as a Secondary Plan would lay out in policy the types of uses that would be permitted on site, and how those uses would interact with one another. In my wildest dreams at that time, I never thought that the City would ever entertain physically attaching a casino to the events centre – but that now appears to be the 'plan' – in absence of any actual policy that would direct this outcome to occur.

And that's the problem. The City thinks its ok for the casino land use to move forward in absence of any policy to guide development. Hell, the OPA doesn't even identify what a 'casino' is (and frankly, the definition found in the zoning by-law for 'place of amusement' isn't exactly helpful either, as it applies to bowling alleys, laser tag and pinball arcades – the latter of which actually has additional restrictions on placement vis a vis schools in the by-law. There are no such similar restrictions for a 'casino' – just 'pinball arcade'. And the parking requirements for 'place of amusement' are clearly deficient for this use, because the City is moving forward with an overflow parking lot on a separate site in order to accommodate the anticipated number of vehicles).

Anyway, it seems to me the City has a real problem on its hands with regards to the casino. But it may not be a fatal problem for the City, should the LPAT come back and say, “Ya, the original decision of Council on April 10th was problematic – but if you do an appropriate economic analysis, and pull together some policies to guide casino development generally, and that speak to the overall 'plan' for development on the Kingsway specifically, you'll be good to go'. That may be the outcome – and if it is, it's likely going to still be a problem for the City and for Gateway Casinos, which apparently has a very aggressive timeline to meet (the local media reports that Gateway wants the casino to be opened in the spring of 2020 – that's a full year in advance of when the arena is now scheduled to open).

But I promised you fatality – at least as far as the casino goes. 

Municipal Due Diligence - Missing

And Petch delivers. Petch also lays out a case that the LPAT has no jurisdiction to decide on the casino matters before it – because the applications themselves should be determined to be invalid, because of the City of Greater Sudbury lack of due diligence. He is asking that the LPAT, at the upcoming Case Management Conference, make a determination that they have no jurisdiction to hear these matters.

Now I don't think that's going to happen. I believe the matters are properly in front of the LPAT, given the April 10, 2018 decisions. But I'm not a high-priced lawyer who does this sort of thing for a living, and anyone who thinks that Petch is out to lunch on this needs to think again (see: "Sudbury casino appeal 'flawed' — Kirwan," the Sudbury Star, August 31, 2018. Note that Councillor Robert Kirwan is also not a high-priced lawyer, or any kind of lawyer that I'm aware of). Because whether the LPAT ultimately makes such an order, what is clear based on Petch's submission and accompanying evidence is that the City of Greater Sudbury appears to have grossly defied a provincial regulation – and the Ontario Lottery and Gaming Corporation has bought into this defiance. And the evidence that the City used to convince the OLG can't be located by the City!

For a land use planning geek like me, it doesn't get much juicier than this.

Petch lays it all out. Back in May, 2012, City Council passed a motion (waiving notice of motion requirements – meaning that the motion was not on Council's agenda, and was only added to the agenda at the Council meeting – so the public had no way of knowing the motion was going to be discussed and/or voted on) to continue to support gaming in the City. That in and of itself is interesting, for although Petch doesn't say it, others are: the City of Greater Sudbury has never passed a motion of support for gaming, so a motion for 'continued support' is in and of itself, problematic. A predecessor municipality of the City of Greater Sudbury, namely the former Township of Rayside-Balfour, had likely passed a motion supporting gaming in advance of the Slots at Sudbury Downs becoming a reality in the 1990s – but the City of Greater Sudbury only came into existence in the year 2001.

Anyway, that's not Petch's argument. Petch takes direct aim at the motion itself. It was this motion, coupled with two other motions of Council – one made in August, 2012, and the final one in March, 2013, on which the Ontario Lottery and Gaming Corporation likely hung its hat when they sent a letter to the City indicating that all of OLG's requirements for hosting a full-fledged casino had been met.

But they clearly hadn't been. 

The 'Willing Host'

In May, 2012, the kind of motion passed by the City to show its support for gaming was subject to the requirements of Ontario Regulation 88/00 of the Ontario Lottery and Gaming Corporation Act. That Regulation required the City to first hold a referendum to determine that a majority of citizens accepted that the City would be a 'willing host' for a casino facility. Of course, there was no referendum.

By the time the City adopted a second motion in August, 2012 (again without public notice), there was a new Regulation in place, replacing O. Reg. 88/00 as part of the OLG's gaming modernization initiative. Instead of holding a municipality to a binding referendum as a prerequisite to show public support for a casino, the new Reg clearly stated that a municipality, though a public process, could determine support. But the problem for the City is that the public process is one that is intended to inform the City's expression of 'willing host' to the OLG – and not happen after the City had already made this expression.

In the case of Greater Sudbury, there has never been a public process to determine whether citizens want our City to be a 'willing host' for a casino, as per O. Reg. 88/12. It simply has never happened.

And yet, on January 15, 2014 – just days after a new Council was sworn in, the OLG responded to two emails from the City's Director of Economic Development, and made the determination that the City of Greater Sudbury had met the tests of the OLG.  

Missing Documents in the Public Record

At the time of this writing, it's not clear what the Director of Economic Development advised the OLG, because the two emails that he sent are not available. Gordon Petch asked that they be produced (and he is asking the LPAT to tell the City that they need to be produced), but the City's legal Counsel is on record advising that they are not available, due to vacation or maybe the City's documents retention schedule.

I personally can't imagine the Director of Economic Development told the OLG anything more than what had alread been presented to Council. There were 3 motions of Council. And there was a public open house held in October 2012, although it has always been clear that the subject of that open house was to discuss where participants preferred the casino to go, and not whether the City should have a casino at all. I attended that open house, and although my own memory of everything that went on is very foggy, I personally do not recall being asked if I thought a casino in the City was a good idea. And there is nothing in the public record that I or Petch have been able to locate which suggests the City has ever made the claim that the public was in fact consulted about being a willing host for a full casino gaming facility.

But again, whatever the City provided to the OLG, the OLG on January 15, 2014 advised the City that it was good enough for them. On the surface, that might be good enough for the parties involved in this matter – it's up to the OLG to interpret its own Regulation, right? 

The City of London's Experience

And that's the thing. In recent correspondence to the City of London on the question of just what that City would have to submit to the OLG for it be considered a 'willing host' for a new gaming facility, the OLG provided a response that is clearly not in keeping with what the City of Greater Sudbury undertook to meet the same regulatory requirements. In the London matter, the Clerk's office was clearly advised by the same individual at the OLG who wrote the January 15, 2014 letter to Greater Sudbury that the OLG's test was to hold a public meeting on whether the City of London should host a new gaming facility first – and then to adopt a specific motion for the OLG. Helpfully, the OLG even provided wording for a draft motion – wording that refers to the public process the OLG envisions as meeting the intention of Regulation 88/12.

Casino proponents in the City of London might wonder why the OLG is holding that City to a higher standard than it held the City of Greater Sudbury – a City that demonstrably did not hold a public engagement session to answer the question about whether the City should be a willing host for a new gaming facility, and yet received OLG's approval anyway. But frankly, that's London's problem. What's pertinent here is the clear double-standard when it comes to interpreting OLG's regulation. The OLG interpreted the Reg one way in response to an inquiry from that City's clerk's office, and another way in response to whatever it was the City of Greater Sudbury's Director of Economic Development submitted to them.

Socio-Economic Impacts of Gambling at a Casino: Land Use Issue or Not?

When those emails finally turn up, I expect the OLG is going to have to answer to someone for something. But it won't be the LPAT, as the OLG is not a party to the matters in front of it. So what is the LPAT to do with Petch's request for an Order?

Here's why what the City of Greater Sudbury did or did not do with regards to public consultation about being a 'willing host' matters. One of the elements that the City is required to look at as per O. Reg. 88/12 involves the anticipated socio-economic impacts of a casino use in the City. When the recent OPA and zoning by-law amendment were working their way through Planning Committee in the winter/spring of 2018, questions regarding whether the City had assessed socio-economic impacts related to problem gambling were asked by the public. Municipal planning staff's response was two-fold: a) the socio-economic impacts of problem gambling were not land use planning matters, and b) even if they were, they would already have been addressed by the City as part of OLG's processes.

Let's look at a) in a little more detail, as the Duncanon-Hales appeal is almost entirely related to the City's lack of assessment of problem gambling prior to making a decision on the casino applications. Duncanon-Hales contends that problem gambling is a land use matter in so far as a new casino will contribute to problem gambling in the City – and the location of a new casino could lead to more problem gambling if it is accessible to low-income people.  By virtue of a casino being a land use, and by virtue of the casino's location (in this case, in somewhat close proximity to low-income housing, on a transit route, and physically connected to a municipal public service facility a.k.a. The arena – and certainly not nearly as isolated as the existing Slots at the Downs facility in a rural location between Azilda and Chelmsford), the City erred in not assessing expected socio-economic outcomes on citizens from the new facility.

Clearly, this is a matter that the LPAT is going to have to rule on – whether the socio-economic impacts of casinos in general ought to be a part of the land use evaluation, and whether those impacts should be assessed with regards to the specific proposed location of this casino. The City says, “No, there is no requirement,” but if that is the case, the LPAT might just as well have chucked the Duncanson-Hales appeal out all together (and they didn't do that).

No doubt resolving this is going to be one of the first items of business for the LPAT. 

No Evidence of Previous Evaluation

But what of the City's second argument – that the socio-economic impacts of a casino were, in fact, previously addressed, as stated by the City's Director of Planning? If they have been assessed, the public is no doubt left scratching its head as to where this might have happened, because it is completely unclear that the City of Greater Sudbury has ever undertaken any sort of assessment at all.

Here's how I see it. I think the City is really on thin ice, claiming that they don't need to evaluate the socio-economic impacts of a land use before authorizing this new use in the City. I get that they may point to the existing Slots at the Downs facility and say that the casino is not all that different from that facility, and since gambling is legal in Ontario generally, and at the Slots specifically, there is no need to evaluate potential negative impacts. There might be something to that, generally speaking – but with regards to this specific proposal, I fail to see how the City can get around looking at anticipated outcomes for putting a casino on the Kingsway – and right next door to a public service facility intended to be used by families and tourists. The City didn't seem to have a problem making an assumption about increased tourism from a joint facility like this – but they are claiming that looking at socio-economic impacts related to gambling isn't in their purview? Nonsense. You can't hype tourism and in the same breath dis looking at negative impacts – especially since the PPS says you should do this.

Is it really all that different from, say, an application to permit an adult entertainment facility somewhere? Those facilities are legal, too – but there may be a very good reason that you don't want to have one within 200 metres of a highschool (uhm, the Gold did close its doors, right?). There are socio-economic impacts for that kind of decision which are routinely assessed for those types of applications – despite adult entertainment facilities being legal.

I don't think the City's argument holds any water – but the LPAT is going to have to make the call.

And if the LPAT decides that socio-economic impacts of gambling generally, or at this proposed location specifically, I see the City's casino case falling like a house of cards. 

Outside the Act

Sure, Petch isn't going to convince the LPAT to declare that it lacks the jurisdiction to deal with the casino applications – but he will be in a position to tell the LPAT that the matter of how and whether the City met the intention of O. Reg. 88/12 is a fundamental part of the case he is going to make. If, as the City contends, socio-economic impacts of gambling were already assessed, it raises the question of just how they were assessed. And the City is going to have to point to a process outside of the Planning Act to make that determination – which means that it's either fair game for the LPAT to adjudicate on that process, or, more likely, someone else is going to need to make the call, likely on the basis of the O. Reg. itself.

Right now, the City will have little choice but to hang its hat on OLG Director Jake Pescatore's direction regarding 'willing host' – but which one? The direction he provided to the City of Greater Sudbury on January 15, 2014, or the direction he provided (along with a draft resolution for Council) to the City of London in April, 2018?

It looks to me like this is all going to head to court. If the socio-economic impacts from gambling generally, or this proposed facility on the Kingsway specifically, need to be addressed by parties at the LPAT, and one of those parties is saying, “but we've already addressed them” and three others are asking for evidence of how that's the case, I can't help but see the matter go to divisional court for a determination. And once it's in front of the Courts, it will take on a life of its own.


You can expect Gateway Casinos and the OLG to intervene. And why not the City of London, too? Everyone's got skin in that game. Ultimately, it's going to come down to whether the Director at OLG made the right call in 2015 or 2018 about how the Reg should be interpreted – and on what basis he made that call for Greater Sudbury in 2015. Whatever the outcome, you can expect the matter to take a fair bit of time. The question that I have is whether the LPAT will be able to proceed at all while this determination is being made.

And I don't think the LPAT will be able to proceed, given that the Duncanson-Hales appeal hinges on whether the City did its due diligence in evaluating socio-economic impacts. If the City says it did them and the appellants say 'prove it', it'll be at the Court that the matter is proved or not. And until a court decides, how can Duncanson-Hales mount any sort of case?

Now I get that the LPAT could rule that the socio-economic impacts of gambling generally, or this casino specifically, are not land use matters that an appeal can be tried on. If the LPAT does this, a couple of things could happen. First, the LPAT exposes itself to judicial review – which is something nobody wants. But certainly such a decision from the LPAT would be something that the appellants, if they are not successful through conventional land use arguments might want to appeal to a higher authority. Second, while the ruling would weaken the case against the casino, it would not kill it all together.

Policy Vacuum

Indeed, the absence of official plan policy related to the casino land use is a problem for the City, here, too – because such policy might anticipate desirable and undesirable locations for a casino. Instead, the casino is moving forward in what amounts to a policy vacuum – one where not only are socio-economic impacts not evaluated, but where anticipated environmental, transportation, water quality and quantity impacts not assessed through policy. At least the City has done some of its homework related to those other anticipated impacts, but nowhere has the City, though policy, required itself to implement the findings of the technical studies on which it relied on to support the OPA and zoning amendment. The City says it'll do what the studies require – but how is the public to be assured of those outcomes? How is the LPAT to be assured of those outcomes?

Anyway, if anyone really thinks that there will be a casino opening in the spring of 2020, I think their expectations are about to take a hit. 

'Fettering' Council

One last, but important matter raised by Petch is the contention that Council had 'fettered' itself by the time it got around to hearing public deputations about the land use planning applications.  Petch contends that with decisions having already been made by Council to locate the casino and arena/events centre on the Kingsway, that the process under the Planning Act related to the land use applications was, in his opinion, "a sham" and that "the minds of the majority Council Members 'were incapable of change' and 'utterly closed'".  Petch concludes that, "The 'bias' and 'fettering' of the minds of a majority of Council Members is a denial of natural justice and contrary to law" and requires the LPAT to rule in favour of the appellants.

Now, I'm not sure that a) the LPAT had the jurisdiction to deal with the matter of fettering, or b) even if it did, whether it would be appropriate to allow the appeals on that basis alone.  What I do know is that there is significant evidence in the public realm to support Petch's assertions of bias and fettering.  We know that the decision to put the arena on the Kingsway was actually made by Council in June, 2017.  At some time shortly thereafter, it appears that Council made a decision (somewhere - likely behind closed doors) to put the casino next to the arena.  Cost-sharing agreements were entered into between the City, developer, Gateway Casinos for Cumulus Architects to prepare the 'Integrated Site Plan'.  A website to promote the 'Kingsway Entertainment District' was bought and paid for by municipal taxpayers.  Signs went up on the Kingsway. And technical studies, including the Traffic Impact Study, submitted by the developer's consultant, Dillon Consulting, were actually paid for by the City.

And the City had budgeted for the arena on the Kingsway even before a zoning by-law amendment application was complete.

Ripe for Quashing

There is little to doubt here that the minds of Council members were made up prior to the submission of complete applications by the developer, and long in advance of the first public hearings on these matters held in January, 2018.  With this in mind, these words from Petch ring true: "there never was a 'real opportunity for those who wished to make representation to be heard so that they might have an opportunity to influence the minds of decision-makers'"

Oh wait a minute.  Most of those words weren't Petch's.  They came from Case Law that Petch has submitted in support of his assertion.  So this stuff is already on record and appears to form the tests that a court of law or (maybe) a tribunal will need to look at when it comes to determining whether a matter was 'fettered'. (Case Law cited: "Old St. Boniface v. Winnipeg" and "Harker v. Regina")

Again, this might not be a matter for the LPAT - it may take a Court to make this determination.  But make no mistake - the City of Greater Sudbury went about this process in a completely backwards way.  By leaving the public out of the decision-making process until such a time that the public could have no influence whatsoever on the outcome of the process, Council has shown considerable attempt to the process - and importantly, to the public as well.  It didn't have to be like this, but Council has monumentally blundered here.  And I sincerely think on the case of 'fettering' alone, the decisions of Council related to the land use planning applications are ripe for quashing.

Public Engagement in Greater Sudbury: Decide First, Consult Later

For me, this is all illustrative of how the City of Greater Sudbury likes to decide on matters first and consult on them afterwards. And in my opinion, that's not only backwards, it's contemptuous to the public. I get that our present Council might have blundered into the situation with regards to the casino motions of the previous Council, and they might have accepted the OLG's at its word when it the OLG indicated that the City had met its requirements. At the time, why wouldn't they?

But knowing what they now must know about OLG and the City of London, is the City going to continue with the charade that it's met the tests of the O. Reg.? This stuff is going to come out – and the City's legal counsel needs to be prepared to answer these questions publicly. I sincerely hope that Council provides decent direction to its Counsel – and frankly the only direction which makes any sense at this time is to start the consultation process over from scratch to determine whether there is a public appetite to be a willing host for a gaming facility.

Greater Sudbury, you didn't consult with me about this. You didn't ask anyone what their thoughts were. And yet you've forged ahead in absence of consultation, and at apparent odds with the Regulation that you had to follow. I get that the OLG has given you a nudge and a wink, but that's frankly not good enough. You have to do better. You have to put this right. You have to ask us what we think about a casino – because it's 2018 and no one has ever asked residents that question.

(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)

The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 3: Valid Appeals and Municipal Contempt for a Public Process

I've been overdue with my updates on my experiences with the LPAT.  After a summer of inaction, a lot has been going on lately, so I'm hoping to add my two cents via my blogs here - building on the first two entries in this series, "The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 1: In the Beginning," and "The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 2: For the Record," along with my supplementary, "18 Whacky Things About the Kingsway Entertainment District Land Use Appeals – Number 12 Will Blow Your Mind!"

There's Never Enough Time

On Thursday, June 7th, parties to the matters under appeal in the City of Greater Sudbury received word from the Local Planning Appeal Tribunal (LPAT) that appeals had been received. I was at Eddie's Restaurant, getting ready to watch the provincial election returns roll in, so my full attention was not given to the letter from the LPAT's Registrar. I thought I had seen something about “10 days” for the LPAT to do something or other about the validity of the appeal – and having reviewed Rule 26.05 prior to receiving the letter, I figured it was going to be 'game on' by the middle of June.

Earlier, I had contacted the LPAT about relief from and/or an extension to the 20 day period prescribed in Rule 26.11, either on the LPAT's own motion, or via a motion that I would bring forward. I was advised that the LPAT would not grant me any relief on its own motion, and that I could bring a motion of my own forward (as per Rule 10), but only once my appeal had been determined to be valid. Realizing that should my motion for relief from the 20 days not be successful, I would have used up at least 15 days on prepping for a motion and having the LPAT listen to it, leaving me with only 5 days to then get my Appeal Record and Case Synopsis in to the LPAT, I decided that I would forego making a motion.

Seriously. Appellants at the LPAT take note: If 20 days to get your act together with a Case Synopsis and Appeal record isn't good enough, while there exists the opportunity to make a motion, the 20 day clock does not stop ticking.

I asked the LPAT specifically about Rule 3.04, Extension or Reduction of Time, and although I thought I had a pretty good reason for this request (I hadn't received my Enhanced Municipal Record from the City within the time period prescribed by Rule 26.04 – it was about 30 days past due by the time I received it), the LPAT flat-out refused to give me additional time to prepare. Keep in mind that the Enhanced Municipal Record included documents for which I likely would have had to file a request under Freedom of Information and Protection of Privacy Act to receive from the City (not many, mind you, but enough: there was an additional letter to the City from the applicant's Planner, dated one day after the copy of the letter that I had previously received from the City, but other than for the date there appeared to be no changes; there was a peer review of the Traffic Impact Assessment and Addendum to that assessment; and there was an addendum to the “Planning Report” prepared by the applicant's planner, even though there was no original planning report filed for the matter that I appealed: a zoning amendment to permit an arena).

When 10 Days Doesn't Mean 10 Days

Anyway, as it turned out, my concerns about my ability to provide a Case Synopsis and Appeal Record were completely upended by my own apparently mistaken interpretation of Rule 26.11. Here's what 26.11 says:

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.”

Note the reference to “undertake”. Normally, when I think of the word “undertake” I think of something having been 'undertaken'. When my wife asks me if I've undertaken to deal with the dirty dishes in the kitchen sink, I'm thinking that she wants to know if I've finished the job. When I take my car in to be serviced and they tell me to come back at 5 pm to pick it up, I assume that they've undertaken all the work at the garage that will allow for me to drive it home safely.

Well, so much for my interpretation of 'undertake'. As per the LPAT's Rule 26.05, in this context, 'undertake' means only “to begin” and not “to have completed”.  Apparently, for the matters under appeal here in Sudbury, the LPAT was shooting for 30 days to determine appeal validity (see: "First decision on Kingsway arena/casino appeals still weeks away," Sudbury dot com, June 22, 2018).

And that's why, when the LPAT finally got around to issuing a letter to the parties on August 7th, 2018 that all of the appeals were determined to be valid, the LPAT could hold its head up high and tell the world that they did, in fact, meet their own timelines.  Even though, well, it appears that they didn't.  But it's all to do with how you look at the word, 'undertake' apparently.

Important Issues

Look, the fact is, these are probably the biggest land use planning matters that the City of Greater Sudbury is going to be dealing with over the next couple of decades. They're also marquee matters for the LPAT – undoubtedly they are the most advanced large appeals that are before the Tribunal. The media here in town has certainly shown a very high level of interest in the determination of validity of the appeals (in part likely because a certain member of Council had publicly stated time and again that the LPAT would find the appeals to be invalid). One might think the phone calls to the Tribunal, the publication of media articles, the general interest around the subject matter and perhaps the letter or letters to the Minister or Premier from members of City Council (unsubstantiated at this point – more on this later) about the LPAT's dilly-dallying might have lit a fire under the LPAT determining the appeals to be valid.

But at the end of the day, the LPAT needs to do what the LPAT needs to do.  It is an arms-length provincial tribunal after all - and it needs to operate independently, and without interference. Yes, I think it should be sensitive to the importance of the issues before it to the parties involved, and to its own Rules, but it ought not to be constrained by those rules or beholden to special interests.  It needs to be able to do its job the best way that it can.

All that said, I have no idea why it took the LPAT so long to determine the validity of these appeals. With a well-respected planning lawyer leading the charge for the majority of the appeals (along with two unrepresented parties – myself being one, and Ward 11 municipal election candidate John Lindsay being the other), the darn appeals should have easily been determined to be valid. It ought not to have taken the LPAT two months to make this decision – a decision that is now potentially under a spotlight of political interference (more on this later - really - just hold your horses!).

Anyway, I'm filing this away for the future, when the LPAT asks me to 'undertake' something or other (more on this later, too). Fact is, in absence of a determination of validity of my appeal, I decided to take a 2-week vacation with my family to Newfoundland. Before leaving, I told friends and family that I sincerely believed the LPAT would make a decision on validity during the first few days of my vacation – because, vacation. And lo and behold, on Day 2, the LPAT did determine my appeal to be vaild – and the 20 day clock started ticking.

Green Gables - Cavendish, Prince Edward Island - this is where I was on the day that the LPAT determined my appeal to be valid - and the 20 day clock for Appeal Record and Case Synopsis started ticking.
In fairness, the LPAT did contact me and asked specifically whether I wanted to bring a motion forward regarding an extension to the 20 day period. I replied that I did not need the extra time, thanks to the extra time that the LPAT gave itself to 'undertake' its validity review. 

20 Days Later

Day 20 rolled around. I provided a copy of my Case Synopsis and Appeal Record to the Clerk's Office at the City. I also 'undertook' to provide a copy to the LPAT by sending it via regular mail. The postal clerk was kind enough to snap a photo of me mailing the package to the Registrar. I consider myself to have met the LPAT's requirements (er, more on this in an upcoming post!).

But wow – let me share some insight here. I'm an unrepresented party. I didn't take my own advice: if you want to win at the Tribunal, hire a lawyer and a planner. Thing is, as much as I care about my City, and as much as I believe in the appeal that I've filed, I just can't pony up the kind of cash that I need to be successful. It certainly helps knowing that there is a serious lawyer involved on a similar appeal to mine. But ultimately, as a Party at the LPAT, I've got to try to keep up with the big shots here. And I am rapidly realizing that although I think I have a pretty good understanding of land use planning, I am completely out of my league here.

Let me be clear: this feeling isn't because of the caliber of the arguments that are contained in planning reports, or appeal letters. It's not because I don't understand policy or zoning regulations (at least I think I have a pretty good understanding of both). This feeling of inadequacy is completely related to the LPAT process and the timelines established for parties like me to get their act together. So far, I've had to figure out whether and how I can make a motion; how to ask the LPAT to take action without a motion; prepare and file a Case Synopsis and Appeal Record within the prescribed 20 day period; and, work as my own advocate to obtain documents that I thought should have been provided to me by the City when I thought they weren't following the Rules.

Sorry. Again, I'm not a planner, but I do know a thing or two about this kind of stuff – and I am in deep trouble. This new process is extremely onerous in the way that it upfronts just about everything – from the filing of documents after the appeal to having one's experts on record pre-municipal decision (because if they're not on record before the decision is made, there will be no opportunity for them to go on record with new studies afterwards).  

Advice: On the Day You Receive Notice, Retain a Lawyer and a Planner

If you are thinking of opposing a land use planning matter in your community, please take my advice: get yourself a lawyer and a planner – and get it the day that the Notice of Public Meeting is first published in the newspaper, because the rapid-fire process from the point of Notice to a municipal decision is completely to the advantage of an applicant and a municipality. Sure, there might have been years worth of behind-the-scenes back-and-forth between a municipal planning department and an applicant – all before an application was ever determined to be 'complete' and the public heard of it. But once an application is complete, prepare to get steamrolled if you don't have your ducks lined up before a municipal decision is made. 

Luckily, in this matter, although there does in fact appear to be significant back-and-forth between the applicant and the City before the applications were determined to be complete (the applications were submitted to the City on November 17, 2017, and those 'planning reports' after all were dated December 4 and 5, 2017 – and the applications weren't determined to be complete by the City until December 17, which is interesting because the City had ALREADY budgeted for this development via the December 12, 2017 (a business case for funding for this project was included in the 2018 budget submission, approved by the City on December 12 – 5 days prior to the City making a determination that the application for a zoning amendment was 'complete' – see Page 10 of 91 of the March 28, 2018 municipal Planning Report) and the Planning Report that was ultimately made available to the public on this matter was dated December 18, 2017.

Decisions Made Before Applications Complete

As you can see, key decisions had already been made by the City prior to the applications ever having been available to the public for consideration. Planning reports from the applicant along with technical studies (maybe from the applicant, but likely paid for by the City) were reviewed; the City wrote a planning staff report; and the City had, in fact, already budgeted for this project before the applications were ever made public, or the public was given an opportunity to comment.

Needless to say, all of these points have worked their way into the submissions of the appellants. But is the LPAT going to care? Not likely, in my opinion. The LPAT's focus is a narrow one. Did the decisions of the City on March 28, 2018 have regard to provincial policy? Were they consistent with the PPS, 2014? Did the conform or not conflict with the Growth Plan for Northern Ontario? Did they conform to the City's Official Plan? And...that's about it. That the decisions themselves might have been made by the municipality with complete contempt for the public process as laid out in the Planning Act will be, frankly, of no matter to the LPAT.

But they should be – because if there is one thing that is clear to me, someone who has been paying close attention to what the City has been doing with regards to these matters – the City has been behaving in a way that is, in my opinion, completely contemptuous of public processes prescribed in the Planning Act, specifically, and more generally with the entire notion that decisions of municipal Council ought to be informed by planning, documentation, evidence and a public engagement process. But that's just me.  I'm a fan of natural justice.  But minds were made up before applications were ever filed.  Heck, our Council directed that applications be filed in August 2017 - they specifically asked for them! Was it any wonder that Council ultimately approved the applications that Council itself asked for?

Look, we still have municipal councillors running around claiming that the decisions related to the arena and casino (now known as “the KED” - the Kingsway Entertainment District) were made on June 27, 2017 (despite the fact that there was no decision-point for a casino on Council's agenda that evening, and despite the fact that the arena was to be located on lands in a draft-approved plan of subdivision that lacked appropriate zoning and – some like me would argue – on lands that did not conform to the Official Plan). So really, did the March 28, 2018 decision to approve the zoning by-law for the arena (and the Official Plan amendment and zoning by-law amendment for the casino) really matter to anyone, except maybe the LPAT? 

On-Going Contempt for the Planning Act

Further, the City remains to this day contemptuous of the Planning Act. Recently, it was announced that the City was issuing an RFP for site preparation work on lands owned by developer Dario Zulich. Yes, you read that correctly: the City intends on spending $8.5 million to prepare lands owned by a private developer. The 'plan', as far as I can tell, would see the City ultimately recouping some of the $8.5 million from other 'project partners' whomever they may be - presumably Zulich himself, who will see work completed at municipal expense on the entirety of his industrial plan of subdivision; and Gateway Casinos, who has an interest in one of the currently unregistered lots – not just unregistered, but unredlined, lots; and maybe a hotel company (but not Hilton). And maybe others. We just don't know who the partners are because all of the agreements, including this one, were made by Staff and have never gone to Council for approval – at least not in open session (see: "City negotiating cost sharing for Sudbury's Kingsway Entertainment District," CBC, September 12, 2018).

Now, I'm just an appellant to the zoning amendment for a new arena on these lands. Far be it for me to point out that there is an Official Plan Amendment that has been appealed by 3 parties related to a casino that is intended to go on Zulich's property. Planners, regarding my earlier assertion regarding the City's 'contempt' for the Planning Act - do you see the issue yet?

The issue is Subsection 24(3) of the Planning Act – a subsection that clearly indicates that a municipality shall not engage in a public work until such a time that the work is determined to be in keeping with a municipal Official Plan. By the City's own admission, the casino is not presently a permitted land use on the subject lands – and yet the City is going to soon be paying to have the site prepared for a casino.

It hasn't happened yet. No money has been spent on grading, drainage works, laying out roads, etc., - but it's anticipated that site work will begin soon. The casino appellants have pointed this out to the City – but the plans appear to be going forward nonetheless. City councillors have been squabbling about this around the Council table and in social media - but the plan from 2017 remains in place: 'Git'er done as quickly as possible (see: "Motion to freeze KED spending shot down at fiery council meeting," the Sudbury Star, September 12, 2018 - and note too the comment from one municipal councillor about the 'decision' having been made in June 2017 - 10 months before the decision was made to which I could legally file an appeal). 

Secret Deals

And the matter of bonusing is now being raised as well – not just by the appellants, but by a member of municipal Council who can't seem to wrap his head around just how the City got around the anti-bonusing provisions of the Municipal Act (see: "City, Sudbury developer too cozy: Signoretti," the Sudbury Star, August 29, 2018). Those provisions generally prohibit a municipality from spending money on a private development enterprise unless certain conditions are in place: the presence of a Community Improvement Plan; the passing of a municipal capital facilities by-law and declaration that the project is considered to be a municipal capital facility prior to spending money; the establishment of a municipal development corporation; and a few others that apply in regional settings. None of those things appear to have happened here in Greater Sudbury, and yet the City has spent money on the Integrated Site Plan (not a Site Plan as per the Planning Act), and is about to spend money on site prep work. It may have also spent money on a Traffic Impact Study and Planning Report in support of private development applications filed by Dario Zulich.

The public is quickly becoming aware of the existence of what are now being called 'secret agreements' or 'secret backroom agreements' that the City has entered into with private development interests. We know these agreements exist, but we don't know what they say, or what commitments they bind the City to (example: will the City recoup any of the $8.5 million for site prep work should the LPAT ultimately decide that the casino and/or arena can't go forward on the Kingsway?). These agreements have become an election issue, with at least one municipal election candidate for Mayor having filed a request under the Municipal Freedom of Information and Protection of Privacy Act to obtain copies of all of the 'secret agreements' (see: "Mayor’s race: Crumplin wants answers on ‘secret agreements’ regarding Kingsway project," Sudbury dot com, August 16, 2018). 

On-going Campaign of Smear Jobs and Intimidation by Elected Officials

And let's not forget about how the City and, specifically how members of Greater Sudbury Council, have intervened in the public process leading up to Council's April 10, 2018 decisions – and how they continue to intervene, largely by publicly smearing the appellants at what appears to be every opportunity. While Ward 5 Councillor Robert Kirwan has been the most vile, Ward 11 Councillor Lynne Reynolds has certainly joined in the pile-on. Both have made wild accusations that the appellants have ulterior motives, are appealing simply to delay the inevitable, are standing in the way of needed economic development, and are just generally untrustworthy. The interventions by members of Council in what is a public process prescribed by legislation is simply vile and has no place - and yet appellants like Tom Fortin and the Downtown BIA and its chair have suffered through a campaign of misinformation that amounts to a public tarring and feathering (See: "Dangerous Myths and Public Intimidation – Where Greater Sudbury is at with the “Kingsway Entertainment District”," Sudbury Steve May, January 17, 2018; "Sudbury Councillor Threatens Punitive Measures Against the Downtown Over the Public's Participation in Planning Processes," Sudbury Steve May, January 18, 2018; "More Public Intimidation and Misrepresentation of Facts from Greater Sudbury Councillor Kirwan Over Upcoming Arena & Casino Public Meeting," Sudbury Steve May, January 20, 2018; "Greater Sudbury Councillors Dismisses Public Participation in Land Use Process - Equates Public Participants with Saboteurs," Sudbury Steve May, March 28, 2018; and, "Kirwan: Time for anti-KED activists to get over it," Sudbury dot com, August 28, 2018).  

Possible Political Interference

And the rumour mill is rife with discussion that one or more members of Council might have written to the Premier to intervene in the LPAT matter. This is something that I am seriously concerned about, because the Province does have extraordinary powers which it can bring to bear to over-ride public processes (such as a Minister's zoning order). If a member of Council has asked the Premier or the Minister to use those powers, or has asked them to intervene with the LPAT – which is an arm's length quasi-judicial tribunal, similar to a court – that would simply be egregious. It would be more egregious if the Province went along and did, in fact, intervene (as of writing this, there has been no evidence made public that I'm aware of that the Province has made any action at all with regards to using its powers or directing an intervention at the Tribunal).

If there is such a request to the Premier or Minister, though, it will be further evidence that the City is contemptuous of the Planning Act. The Mayor wouldn't ask the Premier to meddle with the courts on a matter that the City has an interest in – we should expect the same with regards to the LPAT. I'll be monitoring this one closely, as I have filed a Freedom of Information Request with the City for any correspondence from Council or Council members regarding provincial intervention – either via a zoning order or a request to intervene somehow with the Tribunal. I expect to know more about this in the next month.

So yes, when I look at this all together, I see a lot of contempt for the Planning Act and public processes on the part of the City of Greater Sudbury.

But I didn't appreciate the full scale of this contempt until I read the Case Synopsis of the three represented appellants (the Downtown Business Improvement Area; Tom Fortin; and, Dr. Christopher Duncanson-Hales). More on that in the next part.

(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)

Saturday, September 15, 2018

Trans Mountain Decision An Opportunity to Green the Liberals

The Trans Mountain pipeline will never be built.  Acknowledging this reality should be the starting point any further discussion on the subject between Prime Minister Justin Trudeau and his cabinet. With last week’s Federal Court of Appeal decision leading to the immediate suspension of pipeline construction, Trudeau has been handed a singular opportunity to reverse course on his anti-environment agenda. He can finally get with the program that he campaigned on in 2015: to hold global warming to just two degrees C.

By purchasing Kinder Morgan’s leaky pipeline for $4.5 billion, Trudeau has mocked his own government’s Pan-Canadian Climate Change plan.  The Trans Mountain pipeline has a single purpose – to allow the expansion of the Alberta tar sands.  What has become clear is that the actions of Trudeau and his Liberal government are severely at odds with the commitments to the planet made by those same Liberals in Paris in 2015.

Trudeau and the Liberals also committed to getting serious about protecting endangered species, like B.C.’s southern resident killer whales.  But it may take a court action filed by conservation groups this week to spur the Liberals into finally taking their legislated obligations seriously (see: Lawsuit demands federal departments act to protect southern resident killer whales,” CBC News, September 5, 2018).  The Federal Court of Appeal was explicit that the National Energy Board made a critical error in failing to assess the impacts of increased marine shipping on killer whale habitat. It was an error that could have been avoided had the NEB listened to conservation experts who raised this issue first back in 2014 (see: Tories deny responsibility for 'critical' Trans Mountain mistake made under Stephen Harper's watch,” the National Observer, September 4, 2018).

Trudeau and the Liberals also committed to implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), but instead found itself unable to meet its existing constitutional obligations to consult and accommodate First Nations impacted by Trans Mountain.  UNDRIP includes the principle of obtaining the ‘free, prior and informed consent’ of indigenous peoples where resource development projects are proposed, potentially a more robust obligation than consultation and accommodation (see: Collaborative nation-to-nation decision-making is the way forward,” Martin Papillon, Policy Options, September 5, 2018).

Trudeau and the Liberals campaigned on reducing greenhouse gas emissions, calling Stephen Harper’s National Energy Board process inadequate.  On the campaign trail, Trudeau vowed to change the rules for pipeline assessments so that upstream and downstream impacts would be included.  In office, the Liberals mandated these new requirements, but allowed the Trans Mountain assessment to proceed without a more robust analysis of climate change impacts (see: Trudeau’s plan to kill Energy East without getting caught,” the Financial Post, September 19, 2017).

Taken together, climate change, indigenous rights and endangered species leave no way forward for the Trans Mountain project.  If Trudeau and the Liberals have the courage of their own convictions, they will acknowledge this reality, and seriously begin embarking on the overdue process of transitioning our economy off of fossil fuels – something a growing number of jurisdictions are already doing.  California is about to join Hawaii on the road to carbon neutrality by 2045 (see: "California lawmakers pass bill to phase out fossil fuels by 2045," engadget, August 30, 2018).  There is no reason we here in Canada should be continuing to argue about how to get a bitumen pipeline built.

Tar sands players are even extending Trudeau a helping hand.  Suncor just announced that it won’t expand crude production, due to pipeline uncertainty.  Decisions like this create opportunities for the governing Liberals to get serious about renewable energy, a sector of the economy that is significantly outperforming fossil energy job creation (see: Renewable Energy Continues to Beat Fossil Fuels,” Time, February 8, 2017).  Fact is, if we are going to hold global warming to just 2 degrees C, most of the oil locked in tar sands is going to have to stay in the ground anyway (see: Most of Canada’s oilsands must stay in ground if world to limit global warming: report,” Global News, January 7, 2015).

There’s still plenty of time for the Liberals to convince voters that, despite their recent flirtations with a sunsetting fossil energy sector, that they really are serious about doing all of those good things they said they’d do in 2015 to fight climate change (see: Why Ottawa should step away from Trans Mountain,” Sarah Mason-Case, Catherine Potvin, Catroiona Sandilands, Policy Options, August 29, 2018).

Let’s see if Trudeau and the Liberals will rise to the challenge.

(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)

Originally published as "May: Pipeline decision an opportunity for Liberals to go green"," in the Sudbury Star, September 8, 2018.


“Lawsuit demands federal departments act to protect southern resident killer whales,” CBC News, September 5, 2018. https://www.cbc.ca/news/canada/british-columbia/killer-whales-lawsuit-conservation-fisheries-environment-1.4811356
“Tories deny responsibility for 'critical' Trans Mountain mistake made under Stephen Harper's watch,” the National Observer, September 4, 2018.  https://www.nationalobserver.com/2018/09/04/news/tories-deny-responsibility-critical-trans-mountain-mistake-made-under-stephen
“Collaborative nation-to-nation decision-making is the way forward,” Martin Papillon, Policy Options, September 5, 2018. http://policyoptions.irpp.org/magazines/collaborative-nation-nation-decision-making-way-forward/
“Trudeau’s plan to kill Energy East without getting caught,” the Financial Post, September 19, 2017. https://business.financialpost.com/opinion/ted-morton-trudeaus-plan-to-kill-energy-east-without-getting-caught
“Renewable Energy Continues to Beat Fossil Fuels,” Time, February 8, 2017. http://time.com/4662116/renewable-energy-fossil-fuels-growth/
“Most of Canada’s oilsands must stay in ground if world to limit global warming: report,” Global News, January 7, 2015. https://globalnews.ca/news/1761096/most-of-canadas-oilsands-must-stay-in-ground-if-world-to-limit-global-warming-report/
“Why Ottawa should step away from Trans Mountain,” Sarah Mason-Case, Catherine Potvin, Catroiona Sandilands, Policy Options, August 29, 2018. http://policyoptions.irpp.org/magazines/august-2018/why-ottawa-should-step-away-from-trans-mountain/