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.
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.
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)