Thursday, October 25, 2018

The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 7: So Much for the Downtown


In Part 6 of this blogseries, I laid out what I considered to be the three big land use issues that the LPAT will need to make a determination on for the matters presently before it related to a casino, arena and parking lot development proposal in the City of Greater Sudbury.  I also took a close look at the City's case as it relates to one of these matters - conformity with the official plan policies as they relate to development in the General Industrial Area - which is the designation of the lands on which the casino, arena and parking lot are intended to locate.

I suggested that out of the 3 big issues, the City had the surest footing on that issue, as the City had actually undertaken some level of analysis to address the three main points of contention, which were:

1) whether 'throughout the municipality' should be equated with 'within every land use designation' (the City seems to suggest that there is an equation, while the appellants think it's an absurdity)
2) whether there will be 'adequate' parking on site - the City seems to think there will be, but the need for an additional surface parking facility off-site to meet peak Friday demand as per the City's own Traffic Impact Study suggests otherwise to the appellants;
3) whether an appropriate analysis of integration and compatibility with surrounding uses was undertaken, specifically with regards to proposed industrial uses (the City seems to suggest that no such analysis is needed due to the lack of policy in the official plan which would lead them to undertake such an analysis, while the appellants seem to maintain that it looking at potential impacts on planned uses ought to have been undertaken).

In this blogpost, I'm going to take a look at Big Issue #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.

This might be the most difficult of the three issues to wrap one's head around.  Although I will try to explain the complexities here as we encounter them, suffice it to say for now that one of the biggest mental hurdles to overcome with regards to the arena has to do with whether the application for rezoning should be considered the 'trigger' event for a complete policy analysis of the appropriateness of the location on the Kingsway (appellants say Yes, City says No), or whether the decision about location was actually already made (by Council on June 27, 2017) and therefore the application to amend the zoning by-law should not trigger a comprehensive analysis of policy related to location - because the location had already been determined (City says Of Course! Appellants say No Way!).

Nothing to do with the Downtown

The appellants maintain that prior to approving the zoning by-law for the arena, the City ought to have first looked to policy direction found elsewhere: in the City’s official plan; in the Provincial Policy Statement; and in the Downtown Sudbury Master Plan and the City’s Economic Development Plan, as per the Growth Plan for Northern Ontario.  Further, the appellants believe that the City should have looked at the urbanMetrics study related to the arena and the casino, as well.  A review of those policies and that study would have led the City to determine that an arena on the Kingsway was not in keeping with the PPS, the official plan, or the Northern Growth Plan.

The City maintains that it did not need to look at most of those policies because the decision regarding the location of the arena had already been made on June 27, 2017.  As the decision about location was already made by Council, the only OP matters under review related to the zoning by-law were found largely in Policy 2 of Section 4.4 of the Official Plan.  Because the location for the use was already determined, there was no need to look at how the zoning decision would impact the downtown, because zoning an arena on the Kingsway has nothing to do with the downtown.

from the City's Response to Petch Case Synopsis

It’s fair to say that there is a fundamental disagreement between the City and the appellants on this point.  

The City acknowledges that a new arena anywhere in the City would lead to the existing Sudbury Community Arena, located in the downtown, to be closed.  The City is presently planning on tearing that arena down so that a new public facility can be constructed in its place – one consisting of a convention centre, art gallery and public library known as “The Junction” – named after a nearby underground watercourse that the City buried back in the 1960s.

from the City of Greater Sudbury's Staff Report to Council re: Arena Rezoning
The City maintains, though, that the application for a zoning amendment to permit an arena on the Kingsway really has nothing to do with the downtown.  This was a really difficult one for me to wrap my head around, but I’ve tried to see this a little more clearly from the City’s perspective.  I still don’t agree, obviously.  I'm troubled, too, because the staff clearly provided some level of analysis regarding downtown impacts to Council with regards to the nature of this project - they determined that moving the arena out of the downtown would be good for the downtown (see green underline) - but also maintain that the application to rezone the Kingsway is not about the downtown.

Confused? Let me try to rationalize it for you.

Location Previously Determined

Say that Walmart decides it’s going to close down a store in a City’s downtown, and open up a new store in a field on the urban fringe.  That City’s official plan – like Greater Sudbury’s official plan - has a lot of things to say about strengthening the downtown, and wanting to see more commercial and employment development take place in the core.  In fact, the Plan identifies the presence of a Walmart as part of a strategy to attract new residential development to the downtown (sorry - to be clear, I'm creating a hypothetical situation here!)

But Walmart has already made its mind up.  It’s Board of Directors is going to close down the downtown store and open up another store on lands designated for commercial development on the urban fringe.  Walmart submits an application to rezone the fringe lands.  Does the City conduct an assessment of the impact of Walmart’s decision to close the downtown store? What would be the point of doing so – the decision was already made, and the application in front of the City has nothing to do with the downtown.

Whither the Downtown?

If you’re following along, you may be wondering whether I, as an appellant, am starting to feel a little uncomfortable at this point.  Clearly my Walmart analogy isn’t all that different from the circumstances of the matters at the LPAT.  It’s only the nature of the “Board of Directors” that’s substantively different.  In this case, it was Council that decided to close down the Sudbury Community Arena and build a new facility on the urban fringe – despite a strong policy direction in the official plan to preference the downtown.

And indeed a downtown location for a new arena was preferenced by the City’s consultants, PWC, when they presented their report to Council about proposed arena locations.  Despite the strong official plan policy direction, and despite PWC’s recommendation, Council nevertheless opted to go with the Kingsway.  And those lands were, according to the City, already designated for an arena, due to the whole ‘institutional uses throughout the municipality’ discussion we had in Part 6 of this blogseries.

With this in mind, how can the appellants maintain that the City should have assessed the zoning application in the context of policies that point to the downtown?

Well, there are a few reasons – and ultimately the LPAT is going to have to answer this question.  But let’s look at what comes in to play here.

The Policy Environment - Which Plans Matter?

First, the age of the City’s official plan is a problem for the City on this one.  The Plan was approved in 2006 – which means it can’t be considered “consistent” with the Provincial Policy Statement, 2014.  So decision-makers need to look at both the Official Plan and the PPS.

Further, the same is true for the Growth Plan – to demonstrate conformity with the Growth Plan, decision-makers have to look at it, too.  But – you’ll have to trust me on this one, ok? – there’s not a lot of anything in the Growth Plan that really matters here, save for a single reference found in the preamble to Section 4.1, which reads: “…achieving a healthy, prosperous future for the North.  This begins at the local level with establishing a clear vision for each community’s future, and mapping out a path to achieve this vision.  Official Plans, community economic plans and the participation in community planning efforts are effective tools and approaches to ensure citizens’ and businesses’ view are reflected in their communities’ future economic and long-term sustainability.”

The appellants believe that the Growth Plan provides a way “in” for the City to consider other types of plans when making decisions that impact building strong communities and economic development.  Specifically, the appellants believe that the City’s Economic Development Plan and the Downtown Sudbury Master Plan ought to have been considered by the City due to this reference in the Growth Plan.

The City maintains that neither Plan needed to have been considered, because neither plan has been incorporated into the official plan.  Further, I would expect that the City would suggest that even if the Northern Growth Plan required the consideration of Downtown Master Plan and the Economic Development Plan as guidance documents on matters related to building strong communities and economic development, the application for rezoning to permit an arena had nothing to do with either building strong communities or economic development – because the decision to locate the arena on the Kingsway had already been made, and the only tests found in the official plan in a) through f) of Policy 2 of Section 4.4 did not require this kind of analysis.

So whether that section of the Preamble of the Growth Plan means that approval authorities have to consider their non-Planning Act plans is kind of a moot point from the City’s perspective, because the decision to go with the Kingsway was already made.

The Provincial Policy Statement

And the same, then, would be true of those strong policy directions found in the PPS that speak to building strong communities, and planning for public service facilities.  The appellants are really hanging their hats on the notion that of course the City can’t not look at those policies in the context of the rezoning application.  And here’s where the City’s case seems to get a little muddled, because rather than holding the line on “they don’t apply because the decision was already made”, the City’s response does try to address some of those PPS policy specifics.  Even the Staff Report prepared prior to Council’s decision assessed the application in terms of some of those policies, including Section 1.1.3 about settlement areas being the focus of growth (the subject lands are within a settlement area), and 1.1.1 g) – ensuring that public service facilities are or will be available to meet current projected needs.

On the other hand, a policy like 1.6.3 that requires consideration of using existing public service facilities before developing a new public service facility wouldn’t need to be included in an assessment of the zoning application, because Council had already decided to create a new public service facility, rather than adaptively re-use the existing facility (and you can see now why Petch has said that Council’s decision on the land use applications was ‘fettered’ by previous decisions of Council).

Checkbox Planning vs. Upholding the Public Interest

In taking a very narrow definition of its role in assessing land use planning applications, the City might ultimately be able to satisfy the LPAT that it has done the bare minimum necessary to meet the LPAT’s test of consistency with the PPS and conformity with the official plan and growth plan.  But what is clear is that this narrow definition considerably fails the public interest when it comes to the appropriate location for public service facilities – in this case, a new community arena.  

But changes to the way that the LPAT will evaluate matters now, rather than how they would have been evaluated at the OMB, could very well work to the City’s advantage here.  At the OMB, the City would have had to have demonstrated consistency with the PPS, conformity with the official plan and growth plan – and it would have had to demonstrate that the decision represented ‘good planning’.  At the LPAT, ‘good planning’ is no longer a test – and as a result, Council having met the technical minimums while ignoring other actual issues might just be enough for the City to eke out a victory here.

But I don’t think that's going to happen.  Because those ‘other issues’ as identified in the urbanMetrics Repor are incredibly substantive – and the City can at no time demonstrate that it ever considered them – whether the decision to locate the arena on the Kingsway was made on June 27, 2017 or not. 

The Responsibilities of Municipal Decision-Makers Re: "Planning Matters"

The appellants will also argue that the a municipal corporation is not a Walmart.  The wording found in Sections 2 and 3 of the Planning Act lays this out quite clearly.  Section 2 requires decision makers, when carrying out responsibilities under the Planning Act, to have regard to a list of provincial interest.  

Section 3(5) similarly requires decisions made by decision-makers  be consistent with the Provincial Policy Statement – but note that Section 3(5) does not identify limitations on when decision-makers shall be consistent in the same way that Section 2 does (there is no ‘when carrying out duties under the Act” wording in Section 3(5)).  Therefore, in theory, all decisions of Council are required to be consistent with the Provincial Policy Statement.  In practice, that’s clearly not always the case – but there is little opportunity for the public to do much about it, generally speaking.

3(5)(a) indicates: “A decision of the council of a municipality, a local board, a planning board, a minister of the Crown and a ministry, board, commission or agency of the government, including the Tribunal, in respect of the exercise of any authority that affects a planning matter shall be consistent with the policy statements issued under subsection (1) that are in effect on the date of the decision.” 

In this case, however, if the City is going to maintain that they didn’t need to look at all of the policies in the PPS that might have otherwise guided the City on selecting the best location for the arena because the decision regarding the location of the arena on the Kingsway had already been made by Council.  But the City is still going to have to demonstrate how that June 27, 2017 decision was consistent with the PPS, in my opinion - even though it is not the decision that is under appeal at the LPAT (there was no opportunity for the public to be involved in that decision-making process at all, and certainly no opportunity to appeal it).  The fact that Council’s first decision was not on a land use application made under the Act does not absolve it from having to be consistent with the PPS.  The Planning Act says nothing about the timing of decisions – only that all decisions that affect a planning matter shall be consistent.

And that includes the decision Council made on June 27, 2017.  Council made this decision knowing that it would affect a planning matter.  Council was fully aware that the Kingsway site would need to be rezoned in order to accommodate an arena (see red underline from this excerpt from the PWC report to Council made on June 27, 2017)

Rezoning Needed - as per the PWC Report to Council - June 2017

As part of the PWC process, planning staff were asked for their input on the locations, and appear to have provided input at least in terms of the official plan (there is no reference to the Provincial Policy Statement in the PWC report – perhaps staff analyzed the PPS too – but if they did, there’s no record of having done so in the PWC report).  

from the PWC Report - June 2017
The report submitted to Council for consideration on June 27, 2017 clearly indicated that the lands on the Kingsway would need to be rezoned prior to an arena use being established.  That there was no public process under the Planning Act leading up to this decision of Council which clearly affected a planning matter, or the lack of an opportunity to appeal to the OMB/LPAT doesn’t change the legislated obligation of Council to make decisions consistent with the Provincial Policy Statement.  

And yet, there was no analysis regarding the PPS in front of Council at the time it made a decision on the location of a public service facility.  Council was told only that a rezoning would be needed - from which official plan conformity could be logically extrapolated.  But the age of the City's official plan (2006) means that it itself cannot be considered consistent with the Provincial Policy Statement (2014).  Hence the need for the analysis.  

But that didn't happen.

City Trying to get Around the Need for Comprehensive Consideration of the PPS 

And that’s where this whole “decision already made” things breaks down.  Sorry – a municipal council is not Walmart.  Walmart can get around Section 3 of the Planning Act when it makes land use decisions (because Section 3 doesn't apply to Walmart) – but a municipal council can’t (because Section 3 does apply when Council is considering a planning matter).

And isn’t that a good thing?  As someone who supports consideration of strong city-building policies whenever decisions of Council are being made, I think it is.  And with regards to this particular matter, that’s exactly the stunt the City is trying to pull: getting around having to do a comprehensive policy assessment of the proposed use in terms of the Provincial Policy Statement and the official plan by having Council make a land use decision before applications were filed.  

And that’s just not right.  

But the City might still get away with it, due to some pretty fundamental flaws in our new provincial land use process, thanks to the elimination of the OMB.

The Decision that the LPAT has to Consider

There is a problem for the appellants here.  Although the City clearly won’t be able to demonstrate that it considered a full range of PPS policies when Council on June 27, 2017 made the decision to select the Kingsway over the downtown for a new arena, that’s not the decision that was appealed by the appellants.  The LPAT is limited in looking only at the decisions that were made by Council on April 10, 2018 (and arguably the further decisions made by Council on April 24, 2018).

You can see where this goes, though.  Clearly there was never an opportunity for the public to be involved in any decision related to the where a new arena should go.  That decision ought to have been guided by the PPS and the City's official plan - but it wasn't.  Not only was the public not involved in the decision-making process related to a municipal land use matter, the City also appears to have failed in undertaking a complete policy assessment related to the decision prior to it having been made on June 27, 2017.  Petch might try to argue that the City can’t get around its requirements to look at all of the PPS just because it decided to use a different non-Planning Act process to determine where an arena should go, but he’s going to be confronted by the fact that the scope of the LPAT’s jurisdiction might not allow him to make that argument.

As for me, I’ll continue to maintain that since the only time for (possible) public involvement into the location of the arena was at the time of the City’s review of the zoning by-law.   In my opinion, the City's position that it needn’t have assessed the location as it had already made the decision on the location is a complete absurdity, and the full policy weight of the PPS and the City’s own official plan ought to have been assessed by the City at that time – the only time – the City could have assessed it as per the Planning Act: in the lead-up to the April 10, 2018 decisions.

Arena in the Downtown

And finally, on this matter, I’ll say one last thing.  The City of Greater Sudbury’s official plan includes some very strong policies for the redevelopment of the downtown – and specifically identifies the presence of a downtown arena as an example of an amenity that will attract more residential development in the core.  The Plan is chock full of reasons why a strong downtown makes sense, and why Council should be doing what it can to strengthen the core.  And that’s just the City’s official plan.  The Provincial Policy Statement, too, has a lot to say about strong downtowns and how public service facilities ought to be planned for and developed, and where they should be located.  And then there is the Downtown Master Plan, which contains direction regarding an event centre facility.  And finally, the City's Economic Development Plan includes clear and strong direction regarding a downtown arena.  With all of this in mind, Council’s decision on June 27, 2017 stands in stark contrast to the strong policy direction articulated in the Provincial Policy Statement and the official plan, and the direction provided to the City via the Downtown Master Plan and the Economic Development Plan (both of which were developed with a significant level of public consultation, and the latter of which had a champion on Council in the form of Mayor Brian Bigger - who ultimately supported the Kingsway location for the arena).

Further, for the City to disregard the identified impacts that moving the arena out of the downtown will have on the downtown, as per the urbanMetrics Report, by suggesting that the decision on the zoning application has nothing to do with the downtown because the location was already determined by Council through another process – well, that really flies in the face of what municipal planning is all about, in my opinion.  Planning isn’t about making applications work from a technical standpoint.  It’s about having vision and accomplishing outcomes, and looking forward to nudging a community towards a more sustainable built form – in the fiscal and economic interests of the municipal corporation and its taxpayers.

What's Coming Up:

In my final post related to the Big Issues that the LPAT will be asked to rule on, I'll take a look at the cases arguing in favour of the need for a Comprehensive Review (appellants) and against the need for a Comprehensive Review (City).  I hope to publish that blogpost prior to the upcoming Case Management Conference scheduled for November 6, 2018 - but it seems that my free time is being eaten up by what is becoming a very serious game the City is playing with me related to these appeals.  

I'd rather not go into the details given the personal nature of this 'game', but suffice it to say that I feel that the City is continuing its ongoing campaign of intimidation and public humilation that it appears to have been engaged in with many citizens in our community who have spoken out against these development proposals.  I may write more about this - although I would rather not.  I am, however, learning a lesson that when you get involved with things at this level, even if you think that you are participating in a legislatively prescribed public process, if you're fighting City Hall they fight to hurt and win.

If in my next post about this you note the removal of the word (Unrepresented) in brackets, suffice to say that the matter of which I write about here has not been resolved.

(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)

4 comments:

Me said...

During the April 10 City Council vote, council members said that Zulich would appeal to LPAT if council did not confirm the Planning Committees decision to rezone and amend the Official Plan.

Since council knew Zulich would appeal, why are taxpayers footing the legal cost for the appeal?

In other words, council should has voted again confirming and let Zulich spend his own money on the appeal instead of having taxpayer foot the appeal costs.

Since council admits they knew in advance that Zulich would file an appeal, this is the equivalent to bonusing a private corporation as council is having taxpayers pay the legal costs of this appeal when they admitted Zulich would appeal and have to pay his own legal appeal costs.

Sudbury Steve said...

No, that's not really the way it works. That the applicant had stated before the Council decision that he would appeal to the LPAT if Council refused the applications was in no way out of the ordinary. If anything, in this specific case, the statement has a sensible foundation in that City Staff had recommended approval of the applications based on their planning analysis. And Council followed staff's recommendation and approved them.

There is nothing sinister or out of the ordinary going on with regards to that. There's no bonusing.

As for 'footing the bill' for the appeals - it's Council's decision that's been appealed - and the onus really is on the City to defend that decision. As a taxpayer, I fully support the City spending money at the LPAT to mount a defense against an appeal that I filed. In short, if the City wasn't at the LPAT to defend its decision, that wouldn't say much for the integrity of the decision.

There may be a few fishy things going on, like the Mayor asking for the Province to intervene in the LPAT on the City's behalf - but the things you've identified here are above board.

Me said...

Zulich would not have appealed tho. He has no hotel on board yet and the casino will only build there if the arena is built there. Had council not confirmed the bylaws the project was dead.

What is super dumb is that the province claims the City can increase its debt payments by 90 million a year without anyone's approval other than council.

Any spending of any amount that goes beyond the term of council should need to be approved by LPAT. Right now this council is debt financing this over 30 years. A 3% tax increase on top of the other annual operating tax increases for 30 years just for the arena. In the next 30 years there will be 7 more elections / new councils and this council has handcuffed the next 7 councils.

Furthermore, this KED project is costing 6 million a year for debt / principal payments. KED would lose 1 a year just to operate. This doesn't include the increase in bus cost because the City will be run more buses to KED. The City is then spending 120 million downtown on more annual money losing projects. This 120 million project will cost another 7 million in annual principal and interest repayments.

That's 13 million a year in new principal and interest payments the City has to come up with to finance these brain dead ideas.

Where is the 13 million in revenue coming from?

That 13 million does not include the operating losses of all of these new cost centres.

On top of this they are tearing down and destroying the arena which is a 40 million dollar debt free asset.

These are the dumbest ideas I have ever heard of.

thanida said...

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