Tuesday, September 25, 2018

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)


Greg D said...

Thanks Steve for this blog. After the last municipal election and the decision to scrap the OMB I had hopes that things at the city planning dept would change. It appears that things have gone from bad to worse.
With regards to your comments about hiring a lawyer and a planner to appeal a city backed development is bang on and the short timelines should help with some of the issues we faced appealing to OMB. The long OMB timelines depleted the $30,000 we had raised to appeal the Dalron development on Bennett Lake. However, at that time we could not find a local lawyer, planner, or expert witnesses that would sully their reputations by going against the city. We had to go to the Sault with the delays and added costs. The short timeline of the LPAT would mean that we would not have been able to hire a lawyer after the notice of appeal validity.
My final comment is on the secret deals that the city continues to make with developers. As the election nears it is important that we get the commitment from councillors and the mayor to end the backroom dealing.

Thanks again for bring these issues to light.


Me said...

The Planning Act is a provincially enacted law. Planning Act subs. 8(2) permits the City to have a Planning Committee in accordance with s. 8 because Sudbury is a single tier municipality within the territorial district of Sudbury.

Planning Act s. 8 has six subsections that must be complied with in their entirety. The word “shall” in subs. 8(4) is imperative and since 2015 statutorily requires at least one resident be on the Planning Committee who is neither a member of our municipal council nor an employee of the municipality.

A municipality cannot bypass a provincial enacted process and City Council failed to include a required resident on the Planning Committee as the Planning Committee only has five City Council members. Thus the City has acted in bad faith; interfered with its statutory duty; and breached the doctrine of procedural fairness and legitimate expectations by failing to follow the provincially established and mandated procedure.

In the result, the 2018 Planning Committee hearings regarding KED were not duly convened because the Planning Committee does not have at least one statutorily required resident on the Committee.

Therefore, like it or not, the Planning Committee recommendations / resolutions are a nullity void ab initio and at law something that is void does not exist.

City Council claims they then approved the void Planning Committee’s Official Plan and rezoning decisions that do not even exist, however, City Council’s confirming by-laws of the non-existing void Planning Committee's recommendations / resolutions are also a nullity void ab initio as there are no Planning Committee Official Plan and rezoning decisions to confirm.

Furthermore, the five City Council members who sit on the Planning Committee improperly voted as City Council members to confirm their own Planning Committee decisions when only the other eight City Council members who do not sit on the Planning Committee are entitled to vote on confirming Planning Committee decisions.

And just like the five City Council Planning Committee members, the resident on the Planning Committee does not get to vote on confirming their own Planning Committee decision, either.

Planning Act, R.S.O. 1990, c. P.13




Planning advisory committee

Optional for other municipalities

8(2) The council of a lower-tier municipality, THE COUNCIL OF A SINGLE-TIER MUNICIPALITY THAT IS IN A TERRITORIAL DISTRICT or the council of the Township of Pelee may appoint a planning advisory committee in accordance with this section.


(4) The members of a planning advisory committee shall be chosen by the council AND SHALL INCLUDE AT LEAST ONE RESIDENT of the municipality who is neither a member of a municipal council nor an employee of the municipality. 2015, c. 26, s. 16.

The Planning Committee


Chair: Councillor Deb McIntosh
Vice-Chair: Councillor René Lapierre

Committee Members:

Councillor René Lapierre,
Councillor Mike Jakubo,
Councillor Al Sizer,
Councillor Deb McIntosh,
Councillor Joscelyne Landry-Altmann

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