Thursday, October 25, 2018

The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 6: The City Strikes Back!


This blogpost has been a very challenging one for me to write.  I began writing this post shortly after receiving a copy of the City's Response Case Synopsis to my September, 2018 submission to the Local Planning Appeal Tribunal (LPAT).  I received those documents in early October - and now, almost a month later, I find that I'm still picking away at this post.

The trouble for me here is that I'm trying to summarize the opposition to the case that I'm putting forward at the Board - and to a lesser degree, the case that the City is mounting against the other appellants.  I've discussed these cases together in a number of blogposts, including: "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", "The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 4: The Strong Case Against a Casino, "The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 5: Wasn't That a Party?"  along with my supplementary, "18 Whacky Things About the Kingsway Entertainment District Land Use Appeals – Number 12 Will Blow Your Mind!"  

Wrapping my head around the City's submission has been problematic for me.  Frankly, the City's submission has led me to question my own understanding of how the planning system works, and, perhaps more importantly, how the new LPAT might interpret competing visions of Ontario's planning system.  I have been hearing that the tests for success at the LPAT are not the same for those that would have prevailed at the Ontario Municipal Board - and the notion that a decision of an approval authority is 'good planning' is something that the LPAT, unlike the OMB, will not be rendering a decision on.  Something more 'bare bones' appears to be able to carry the day.  

And that's difficult for me, as I've been raised to understand planning in the context of 'highest and best', rather than in a world of check boxes to determine that minimum requirements are met.  For those who have been following the specifics of the arena/casino matters in front of the LPAT right now here in Greater Sudbury, thinking of Council's decisions in this context may give you pause for concern.  It certainly has for me.  If doing as little as possible to meet the 'tests' of consistency with the PPS, and conformity with the Growth Plan and the City's own official plan is technically good enough - than those, like me, who are going to be asking the LPAT to take a closer look at the broader implications of the decision in terms of PPS and official plan policy - well, we might be in for a big surprise.

And if you're not from Sudbury, but you're reading this post and trying to find some nugget of wisdom to apply to your own matter which may be at the LPAT or potentially heading there, you too may need to start thinking more about these minimums.

The City's Response

The City of Greater Sudbury issued a press release on Thursday, October 5th, advising that the City’s ‘paperwork’ for the LPAT had now all been filed (see: “Update on Local Planning Appeal Tribunal Process,” the City of Greater Sudbury, October 5, 2018).  That’s a bit of an unusual step for the City to take, but I suppose that these matters have been in the public eye in a way that no other land use planning matter in the City has been, to my recollection.

From the City’s responses to the Case Synopses of the appellants, it is now fairly clear on what grounds the City will be defending its decision at the LPAT.  In this blogpost, I’m going to try to explore as best as I can, what those grounds might be.  But please keep in mind that I am a biased source, and I may not be doing the City’s position the justice that it deserves, given that I am on record in opposition to it.

The City’s case with regards to the arena was laid out in response to solicitor Gordon Petch (who is representing appellants Tom Fortin of Casino-Free Sudbury; Christopher Duncanson-Hales; and the Downtown Sudbury Business Improvement Area) and to my own submission.  Petch raised a number of matters that I did not, so the City’s responses to our two submissions were slightly different.

As I indicated in Part 4 of this blogseries, the City will be arguing that many of the matters raised by Petch are beyond the scope of the LPAT to decide.  Specifically, Petch’s concerns related to the OLG’s interpretation of its regulation as it pertains to the casino (and whether the City of Greater Sudbury ever went through the right process to determine if it were a ‘willing host’ for an expanded gaming facility), and the matter about Council having been ‘fettered’ by previous decisions at the time that it finally made decisions related to land use applications in April, 2018.

The 3 Big Issues With the Arena Rezoning

Of the Planning issues raised related to the arena, all of the appellants are largely in agreement over three fundamental concerns:

1 – That the application for rezoning and decision of Council to permit an arena on the subject lands did not fully explore the policy environment as it existed at the time of Council’s decision.  Broadly speaking, #1 here is the appellant’s assertion that matters related to the downtown and economic development should have been explored by the City prior to a decision, whereas the City contends that there was no requirement for that kind of exploration.

2 – That the rezoning of employment lands for use by a public facility in the form of an arena should not have occurred without a comprehensive review, as per the Provincial Policy Statement.  The City contends that a comprehensive review was not needed.

3 – That the City’s interpretation of Official Plan policies related to Institutional Uses is fundamentally flawed and should not be relied upon.  Of note, the City contends that it is the appellants understanding of those same policies which is fundamentally flawed.

There are a few other areas of contention, including a technical matter that I’ve raised regarding whether the City has the ability to amend a by-law that it is not in force or effect (I don’t believe it does; the City believes it can do this), but generally speaking, these are the three main points of contention from a planning point of view. 

#3 - "Throughout the Municipality", Parking and Integration & Compatibility

Let’s look a little more closely at #3 first – as it’s the most significant issue for the City’s case, in my opinion.  If the LPAT rules against the City on this one, the City is smoked.  But it's also potentially where the City has the strongest case (it is the only issue the City undertook to do any significant analysis to address), due to the 'flexibility' built into the City's official plan that in many respects leaves fundamental questions like 'appropriateness' to be dealt with at the zoning stage, rather than through policy.  It's a great approach for developers, in my opinion - but it's not the best when it comes to city-building and determining the best locations for new uses.  And boy, is this arena decision ever a classic example of that!

The City’s decision to approve the application for rezoning to permit an arena was supported by several Planning Reports.  Ultimately, the City determined that the application was in keeping with the City’s official plan primarily due to an interpretation of Section 4.4, Policy 2 of the official plan.  Section 4.4 of the official plan provides a framework for institutional uses, and identifies that sometimes institutional uses will be located on lands designated for institutional use, while at other times institutional uses will occur on lands designated for other types of uses.  Specifically, Section 4.4 indicates, “Institutional uses are permitted throughout the municipality in accordance with the needs of area residents and policies set forth below.  Those policies ‘set out below’ are in Policy 2.  More on Policy 2 in a moment.

First, a little bit about “throughout the municipality”.  In my opinion, the entirety of the City’s case for approval of the zoning by-law application hangs in the balance of these three words.  For the City to succeed at the LPAT, I believe the only way forward for the City is to have the LPAT agree on this question of fundamental importance: does “throughout the municipality” mean “in every official plan land use designation” as the City contends, or does it mean something different?  If the LPAT doesn’t agree with the City on this, it’s game over for the City.  If the LPAT does agree with the City, the City’s case might still fall apart over the other two planning issues, or even over an interpretation of Policy 2 of Section 4.4.

Let’s take a very close look at this.  Recall that the subject lands are designated General Industrial in the City’s official plan.  That designation restricts the sorts of land uses that might locate on the subject lands to industrial uses, or uses ancillary to industrial uses that could include some commercial uses.  A rezoning application in 2014 added a number of other use permissions to the mix, including a hotel and a private recreation facility.  An arena, which is a public service facility (an institutional use), is not contemplated as a use on the subject lands as per the General Industrial land use designation policies of the City’s official plan.

However, Section 4.4 of the official plan does contemplate institutional uses ‘throughout the municipality’.  The City interprets this to mean that institutional uses are permitted on lands designated General Industrial.  And it was for this reason that the City did not require an application for an Official Plan amendment.  Further, the City appears to be maintaining that it was only required to look at official plan policies found in Policy 2 of Section 4.4 to determine whether the rezoning application was appropriate.

I am over-simplifying here.  The City’s case also hinges on making determinations that the application for rezoning was consistent with the Provincial Policy Statement and conformed with or did not conflict with the Growth Plan for Northern Ontario, and was in conformity with the official plan.  But in a significant way, the City really hung its hat on Section 4.4 of the plan to determine official plan conformity, and on Policy 2 to determine whether the arena was a good fit.

Without question, the arena is an institutional use.  I state this again because there clearly are significant questions as to what this arena really is.  Many believe that the arena is a tourism-based use, which would make it commercial.  Certainly many on Council at the time a decision was made appear to have been under the belief that the arena was a commercial use – despite statements in the City’s staff report to the contrary.

Drilling Down: "Throughout the Municipality"

As an institutional use, it would seem that the City is actually on pretty solid ground with its analysis that an arena would be permitted in the General Industrial land use designation – as institutional uses are permitted ‘throughout the municipality’.  But here’s where the City’s interpretation really breaks down, in my opinion.

First, the policy does not specifically state that institutional uses are permitted within any land use designation.  It instead refers to something else – ‘throughout the municipality’.  Had the City intended to permit institutional uses in every land use designation, it likely would have stated as much in policy.  But that didn’t happen.  And it probably didn’t happen because it would be absurd to allow as-of-right development permissions for institutional uses in all land use categories.

Think about it.  Institutional uses like schools, recreation centres and maybe even arenas might make a lot of sense in commercial and residential areas.  It’s possible that some types of institutional uses, like waste facilities and recycling centres might make sense in industrial areas or rural areas.  But what about in a Parks and Open Space designation?  Well, maybe.  Maybe some types of institutional uses, like a tennis bubble? But how about institutional uses in the Agricultural Reserve?  Well, uhm, maybe – something like an experimental farm perhaps?

Actually, if you stick to the City’s interpretation of ‘throughout the municipality’, subject to whatever it is that Policy 2 says, an arena or a recreation facility or a recycling centre – in other words any and all institutional uses – would also be permitted as-of-right everywhere.  In residential areas, in rural areas, in Parks and Open Space areas, and even in the Agricultural Reserve – an area the City has set aside because it is a prime agricultural area.

A note for readers on prime agricultural areas.  Those are areas that are provincially significant due to the predominance of Class 1, 2 and 3 soils.  They are to be the focus of agricultural development only, as per the Provincial Policy Statement – although some other types of agriculturally-related uses are permitted there.  But a recycling centre or an arena would appear not to be in keeping with preserving these areas for agricultural use.

And yet, under the City’s interpretation of ‘throughout the municipality’, that’s exactly the sort of absurd situation that ends up being created.  And it’s why equating ‘throughout the municipality’ with ‘in every land use designation’ really breaks down.  Would the application of Policy 2 prevent a new school in the Agricultural Reserve?

A Closer Look at Policy 2 of Official Plan Section 4.4

Let’s turn to Policy 2.  It indicates, “In considering the establishment of new institutional uses or the expansion of existing facilities on lands not specifically designated for institutional purposes, Council will ensure that:

a. sewer and water services are adequate to service the site;
b. adequate traffic circulation can be provided;
c. adequate parking for the public is provided on-site;
d. public transit services can be provided economically for the site;
e. the proposed institutional use can be integrated into the area and is compatible with surrounding uses; and,
f. adequate buffering and landscaping is provided.”

You’ll quickly see that this is not a comprehensive list of land use considerations that new and expanding institutional uses must consider when locating on lands not designated specifically for institutional uses.  In my example above – a new school being located in the Agricultural Reserve – depending on the specifics of the site, only e) is likely to cause some concern.  Can a school be integrated into an agricultural area, and be compatible with surrounding uses?

Where this takes us is actually problematic, because now we are down to relying on opinion for policy interpretation and possibly on engineering studies.  If they’re spraying manure on the lands next to the school every other week, that might be a problem. But maybe it’s not.  And maybe they’re not even spraying manure, or there aren’t any manure holding tanks nearby.  Maybe the land isn’t producing anything at all.  It would be hard to argue that a school wouldn’t be compatible with farmer’s fields left fallow for a decade.  Certainly you could integrate a school into that kind of setting.

Of course, the problem here is asking the question at all.  The Provincial Policy Statement, 2014, doesn’t permit this scenario. So if the PPS doesn’t allow, does it make sense that the official plan be interpreted in such a way that it would be allowed? Of course it doesn’t.  And that’s why ‘throughout the municipality’ should not be equated with ‘in every land use designation’.

OK, back to the arena.  Let’s look at Policy 2 in the context of the arena.  Let’s dispose of a), b), d) and f) outright, because the City says the arena is good to go as it relates to those items, and although the appellants might disagree with that analysis, the disagreement on those items really come down to opinions.  But there are  serious concerns raised by the appellants with regards to c) and e).  So let’s look at each in turn.

c) indicates that there must be adequate public parking provided on site.  Now, this is really interesting.  On the one hand, the site for the arena is able to provide enough parking spots to meet the requirements of the zoning by-law.  On the other hand, this isn’t enough parking, and that’s why the applicant has also applied to rezone lands on another lot for an ‘overflow’ parking lot.  So in this case, the City says that the arena use is in keeping with c) because required parking as per the by-law can be accommodated on site, and this is adequate (it has to be adequate because the by-law would have a different requirement if it weren’t). 

Adequate Parking On Site?

The appellants maintain that the intention of c) isn’t being met by the application, because the City’s own traffic study indicates that there isn’t enough parking on site to adequately accommodate arena users at peak times.  The argument here boils down to a discussion of what’s ‘adequate’ – are the zoning by-law’s requirements ‘adequate’ or is expected use based on the findings of a technical study ‘adequate’? 

Here's what the City's Traffic Impact Study, submitted by the landowner in support of his land use applications (yes, you read that correctly) have to say about 'parking' for the casino, arena and hotel use (note that a hotel is already permitted on site).


From the "Summary" Section of the Traffic Impact Study.
See how there is a discussion about requirements based on both the zoning by-law standards and on something called 'first principles'.  Note that it's the 'first principles' which take into consideration the needs of the use being met at peak times.  You can right away see the difference in the requirements.  The zoning by-law says that  1,192 spaces are needed for the arena (1 parking spot for every 6 persons - in anticipation of some serious carpooling initiatives I guess).  But what the arena actually needs to fulfill its function as an arena on a peak Friday night is 2,615 spaces.  And that's more than will be provided at the time of initial build out (2,142 - for all three uses).  Hence the need for additional overflow parking.

Here's a schematic of the Site Plan for the arena, as per the Traffic Impact Study. Note that the arena is almost completely surrounded by parking lots - although the Traffic Impact Study indicates that the parking lot located to the southeast of the facility could be replaced one day by a second ice sheet - something that the City has absolutely not yet approved.  But should it be approved, the Traffic Impact Study identifies that the parking lot would be shifted to the south and into the area presently set aside for greenspace.


Site Plan - Parking - from Traffic Impact Study
Clearly, though, the site is not large enough to accommodate all of the parking that's needed for an arena.  Which does make me wonder just how good those zoning by-law standards really are.  Sure, when the arena is empty, there's more than enough parking to meet anticipated needs.  But when the Wolves are playing, guess what? They've got to go somewhere else.

And that somewhere else is the 'overflow' parking lot, subject to another zoning by-law amendment.  I write 'overflow' with quotes around it because it's not really intended for 'overflow' parking - really, the additional parking is needed to meet basic needs at peak times.  'Overflow' in this case would be like suggesting that the outside westbound lane of a 4-lane road is 'overflow' for westbound vehicles traveling at peak times.  

And yet the City's Staff Report for the zoning by-law amendment for the parking lot describes it somewhat differently - referring to 'special events' rather than 'peak Friday demand' - the criteria used in the Traffic Impact Study to determine down to the a single parking space just how many parking spots are needed for the use.  Here's what the Staff Report says:


from Staff Report - Parking Lot ZBLA


Keep in mind, at a very fundamental level, the City does not believe these planning applications are part of a larger, comprehensive development proposal.  By accepting multiple applications for rezoning (and 1 for an official plan amendment), and by having multiple public hearings (3 in total - one for each use - casino, arena, parking lot), the City appears to believe that the applications, while related, have no bearing on one another.  In theory, this kind of piece-mealing might lead to the arena going forward and the casino not - or vice versa. Or both casino and arena moving ahead, but no parking lot to service their needs.  For the appellants, including myself, it's a strange way to do planning.  

I suspect that there are many members of the public that thought that the Kingsway Entertainment District was a real thing, given the number of times the media and political candidates referred to it during the election.  But here's what the City actually has to say about it: 


From the City's Response Case Synopsis to Petch
Yes, seriously.  The City's lawyer has told the LPAT that these applications are not about a comprehensive development proposal known as the Kingsway Entertainment District.  Despite the hype, we're really just talking about an arena, a casino and a parking lot.

But the fact is, the applications are integrated on a fundamental level - and that fundamental level is parking.  The only way the casino and arena can have enough parking available to meet peak needs is to ensure that parking spaces are available on another site.  And that's why all of the applications are bound up with another in a way that the City says their not.  More on this later.

For now, though, the implications appear to be clear to me.  Letter c) of Policy 2, Section 4.4 indicates:

c. adequate parking for the public is provided on-site;

And yet adequate parking for the public is not being provided on-site - it's being provided off-site, in the 'overflow' parking area.  

I guess we will be down to determining what 'adequate' actually means. The City will probably make the case that the number of parking spots is adequate because it is in keeping with the zoning by-law standard (1 spot for every 6 persons).  I've always understood 'adequate' to mean that there will be enough parking available to meet anticipated demand.  And since we know what the anticipated demand will be at peak Friday times, that's what we plan for.  Otherwise, parking facilities won't be adequate.  They will in fact be inadequate.  But if the zoning says "X" and the City provides "X" well, maybe that's 'adequate' - even if we know that we need "X + Y" to meet actual peak demand.

Anyway, it's a matter of opinion, and I'm sure the City and appellants both will be trying to convince the LPAT to adopt their interpretation of 'adequate'.  

Integration

Regarding Section 4.4, Policy 2 e), can the arena be integrated into the area, and is it compatible with surrounding uses?  For me, this is a really interesting item, because the City appears to be  interpreting their assessment of e) on a “snap-shot in time” basis.  In other words, the City has focused its analysis on the site today, and not what the expectation of the site will be in the future.  And I think I know why the City did this – because the public’s expectation that the ‘site’ will be developed for entertainment uses does not mesh with the City’s actual existing vision for the land as stated in the official plan: the site will be an industrial area. And it’s the arena’s compatibility with those future industrial uses which has not been adequately assessed by the City. 

Here's what e) says again: e. the proposed institutional use can be integrated into the area and is compatible with surrounding uses;

I believe the City would respond in two ways to my statement above: First, yes, they did assess the new use vis a vis planned industrial uses in order to demonstrate compatibility and integration.  But there is little analysis in the City’s Staff Report that supports that conclusion.  Second, the City might respond that e) doesn’t actually require an assessment with planned-for land uses, but rather only a more limited assessment would be appropriate.  Note the lack of reference to “planned for land uses” in e), to support the City’s analysis here.

Anyway, I’m not actually sure what the City believes with regards to e), beyond that it does not agree with the appellants that the City failed to adequately consider e) when it made its decision to approve the zoning for the arena.  But you can see that absurdity in undertaking an analysis of the arena use in the context of the site as it is today – which is an open field – rather than in the context of uses that are planned for that open field – namely uses that are permitted in the General Industrial land use designation.

Here's what the City has to say about the location of the arena with regards to land uses surrounding the industrial subdivision in which the arena is intended to go.  There is some discussion here about 'planned development', but it is quite modest.


from Arena Staff Report - City of Greater Sudbury
There is a specific discussion about 4.4 e) - but it provides no assessment of the arena in the context of planned for industrial uses - but again, to be clear, there is actually no requirement in e) to assess integration and compatibility on planned for uses - only with existing uses.
from Arena Staff Report - City of Greater Sudbury
So if the lands are undeveloped, why are the appellants kicking up a fuss about 4.4. e) if the City did the bare minimum in assessing integration and compatibility of an arena with existing surrounding uses, as per the official plan?  

Well, the official plan is only part of the policy environment that the City ought to have used to assess compatibility.  There is also the Provincial Policy Statement.  Several policies in the PPS speak to development patterns, and specifically 1.1.1 c), which indicates that healthy,livable and safe communities are sustained by avoiding development and land use patters which may cause environmental or public health and safety concerns.  In this case, it's the public health and safety concerns which the appellants maintain were not adequately assessed, due to the anticipated and planned for presence of industrial facilities in the remainder of the industrial subdivision.

There is also PPS section 1.3.1 c) which indicates that planning authorities shall promote economic development and competitiveness by encouraging compact, mixed-use development that incorporates compatible employment uses to support livable and resilient communities.  In this case, it's unclear that the the 'employment uses' (the industrial uses) are compatible with the arena (or casino) because they have never been evaluated for compatibility.  The City says they don't have to do this because those industrial uses don't exist and 4.4 2 e) - but the PPS here suggests otherwise.

And finally, 1.3.2.3 of the PPS might be a stretch - but it indicates that planning authorities shall protect employment areas in proximity to major goods movement facilities and corridors (which are a defined term in the PPS) for employment uses that require those locations.  I'm not sure that any of the appellants have made the argument that the Kingsway in this location should be considered a 'major goods movement corridor' but there's a strong case that it is, given that the Kingsway is the primary means of highway access into the eastern part of the City's largest urban area.  Given that the Kingsway connects to the provincial highway system just down the road, I think there's a case.  And as this General Industrial area is the first 'employment area' in proximity to the provincial highway system, it ought to be protected for the sorts of uses that should be locating in those special areas.  And an arena and a casino are not the kinds of uses contemplated.

Again, the City does not appear to have considered this.  Maybe because the City doesn't consider the Kingsway to be a major goods movement corridor - or maybe it's because Policy 2 of Section 4.4 of the official plan didn't require them to - and doing the bare minimum was considered good enough.

Highway 17

As an aside here, there is a corresponding policy in the PPS regarding the need to protect major goods corridors.  Section 1.6.8.2 of the PPS indicates that major goods movement facilities and corridors shall be protected for the long term.  If the Kingsway is a major goods movement corridor, that's another problem for the City - as traffic impacts directly on the Kingsway from the casino and arena have been evaluated, and are anticipated to cause some serious headaches.  But more importantly, it will be difficult for the City to make the case that Provincial Highway 17, which has a junction with the Kingsway just down the road, is not a 'major goods movement corridor'.

Major goods movement facilities and corridors are defined in the PPS as being, "transportation facilities and corridors associated with the inter- and intra-provincial movement of goods.  Examples include: inter-modal facilities, ports, airports, rail facilities, truck terminals, fregigt corridors, freight facilities and haul routes and primary transportation corridors used for the movement of goods."  It's the italicized portion of the definition which would seem to apply to Highway 17.

The City's Traffic Impact Study did not consider impacts on the bottle-neck intersection of the Kingsway and Highway 17, less than 2 km down the road from the Levesque Street / Kingsway intersection where the bulk of traffic from the arena and casino are expected to exit the subdivision. 


Scope of Analysis - from Traffic Impact Study
One can't help but wonder whether the City looped the Ministry of Transportation into any discussion it might have had prior to selecting the Kingsway as the location for a new arena on June 27, 2017.  Clearly, the City did not assess this issue when the land use applications were being considered.  

Anyway, it very well may be a non-issue.  I'm not going to get excited about it, but I can't help but wonder whether the presence of Highway 17 just a few clicks away might become a future problem for the City's case at the LPAT.

The First Hurdle

The appellants contend that the City’s interpretation of c) and ) is flawed, while the City maintains that their consideration of c) and f) was appropriate.  The appellants, however, further contend that the list of considerations found in Policy 2 is not anywhere near comprehensive enough for consideration by the City in terms of this application - especially because of the PPS.  The City, however, maintains that it is.

So on this big issue, the City has to show the LPAT that the City’s interpretation of ‘throughout the municipality’ is preferred over that of the appellants. And even if the interpretation is preferred, that matters related to c) 'adequate parking', and f) integration and compatibility with surrounding (and planned for?) uses were adequately addressed.  

If the City fails to convince the LPAT to prefer its interpretations, the City’s case will crumble like the house of cards the appellants believe it to be.

But if the City proves that it did in fact do the bare minimum of analysis as per the official plan, the City will still have to overcome two other big issues, which I will explore in the next part of this blog series.

(opinions expressed in this blog are my own and should not be interpreted as being consistent with the views and/or policies of the Green Parties of Ontario and Canada)




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