Thursday, March 14, 2019

The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 8: Derailed!

I've got some catching up to do.  It's March, 2019 - and between you and me, I was really enjoying my little blog-reprieve from writing about my experiences with the Local Planning Appeals Tribunal (LPAT) on a matter arising from a decision made by the City of Greater Sudbury to approve a zoning amendment for an arena/event centre on lands located on the Kingsway on the City's urban fringe.  

Let's face facts here: I've been living with all of this for almost two years now.  It was in February, 2017 that PricewaterhouseCoopers (pwc) released its first report to Council about an arena/events centre, “Proposed Sports and EntertainmentCentre Feasibility and Business Case Assessment”. In March of 2017 I first wrote about how a new events centre in Greater Sudbury should act as a catalyst for green economic development (see: "Sudbury Events Centre Should Drive Creative Class Economy," Sudbury Steve May, March 17, 2017).  Shortly thereafter, the PricewaterhouseCoopers (pwc) report about the arena was made available to the public.  

And later, in June 2017, City Council made a decision to build a new arena on the Kingsway - rather than in the downtown core (which would have been in keeping with the City's planning and economic development documents - and which was the first choice of pwc for a location, as per their “Greater Sudbury Event Centre Site Evaluation").  Prior to the meeting, I wrote a letter to my Councillor, urging him to support a downtown location (see: "An Open Letter to My Ward Councillor, Fern Cormier, Regarding the Events Centre," Sudbury Steve May, June 23, 2017) - which he did do on the night of June 27, 2017 when the matter came up for a vote - a vote that I predicted would be a defeat via a tie vote for the downtown in a post made earlier that day (see: "Crystal Ball Gazing: How Sudbury Gets a New Kingsway Event Centre - Not on Merit, but on a Technicality," Sudbury Steve May, June 27, 2017). 

I followed Council's decision up with two more posts about how I believed the City should now try to make the "Kingsway Entertainment District" work (see: "Mapping the Way Forward for a Kingsway Entertainment District," Sudbury Steve May, June 30, 2017; and, "An Open Letter to Greater Sudbury Council Regarding a Kingsway Entertainment District," Sudbury Steve May, July 11, 2017) despite my opposition to the inclusion of a motorsports facility at the KED (see: "Motorsports in a Time of Climate Crisis: Sustainability Must Be Our Focus," Sudbury Steve May, June 7, 2017).  My comments about process were ignored by the City.

I participated fully in the City's so-called public engagement around the "Integrated Site Plan" (remember the online survey that accompanied the whrilwind public sessions: "Are you excited about the future?") and called for transparency in the design process (see: "Site Design for the Kingsway Entertainment District Must be Unfettered by Constraints, Include Public Engagement," Sudbury Steve May, August 14, 2017; and, "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).  And I provided the City with my own thoughts about how the Kingsway site should be designed with climate change and sustainability in mind (see: "An Open Letter to Greater Sudbury Council Regarding the Draft Integrated Site Plan for the Kingsway Entertainment District," Sudbury Steve May, November 7, 2017), even though I was clearly not on board at that time with the direction that Council had chosen to take (see: "The Kingsway Entertainment District - How Council's Vision Fails Greater Sudburians," Sudbury Steve May, November 6, 2017). 

After development applications for an arena and a casino were filed by the landowner in December, 2017, I provided my written comments to the City on the arena rezoning (see: "My Comments to the City of Greater Sudbury re: Zoning Amendment to Permit an Arena/Events Centre on the Kingsway," Sudbury Steve May, March 15, 2018) and on the casino official plan amendment/rezoning (see: "A Casino is No 'Place of Amusement'," Sudbury Steve May, April 10, 2018).  These comments were not given any heed by the City prior to decisions being made by Council on April 10, 2018.

Throughout the public process between the time that applications were filed by the developer and the end of the appeal period for Council's decisions of April 10, 2018, I documented an  on-going smear campaign directed at members of the public by some municipal councillors (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; "Standing Up for a Sustainable Long-Term Vision for Community Development," Sudbury Steve May, January 19, 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 26, 2018; and, "Councillor's Accusation that Downtown BIA is Engaging in 'Illegal' Activities Should be the Last Straw for Sudburians," Sudbury Steve May, May 1, 2018).

After Council made its decisions to approve the land use applications, I speculated about what might happen after that - and ended up having a lengthy conversation with myself regarding the new LPAT and the potential timelines for resolution to any appeals (see: "Council Made Its Decisions on the Kingsway Projects - What Happens Next?" Sudbury Steve May, April 11, 2018).  I realize now that it was here that I fell into a trap of my own making, as I rationalized to myself and to the few readers who stuck with that post until the very end that a first decision of the LPAT would likely be made in December, 2018 - and after the matter was returned to Council, appealed to the LPAT again, and went through a full hearing process, it would all wrap up by the end of December, 2019.  And that was the timeframe that I had in my own mind when I filed my appeal of the arena rezoning (see: "My Letter Appealing the City of Greater Sudbury's Decision to Adopt By-law 2018-63Z to Permit an Arena on the Kingsway," Sudbury Steve May, April 25, 2018).

I then started documenting my adventure at the LPAT - in part because I thought that it would be a good idea to provide residents of the City with "the other side" of the story - and partly because the LPAT process is very new, so I thought that others who might be entertaining filing their own appeals (especially unrepresented individuals, like me) might derive some benefit from this blogseries.  

And here's where I've taken the story so far.  I gave readers some background information about the KED decisions in "The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 1: In the Beginning."  In "The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 2: For the Record," I wrote about the appeals, and my experiences trying to obtain the "Enhanced Municipal Record" from the City.

I had a bit of fun with, "18 Whacky Things About the Kingsway Entertainment District Land Use Appeals – Number 12 Will Blow Your Mind!" where I explored a few under-appreciated elements of the KED decisions, and the LPAT.

In, "The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 3: Valid Appeals and Municipal Contempt for a Public Process", I wrote about the how the LPAT determined the appeals to be valid - and their strange interpretation of the meaning of '10 days'.  I also updated readers on the on-going smear campaign and contempt for land use planning processes being demonstrated by some municipal council members. The topic of 'secret agreements' between the municipality and the land use developer also came up.

In "The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 4: The Strong Case Against a Casino," I explored materials filed by Casino-Free Sudbury, the Downtown Sudbury Business Improvement Area, and Dr. Christopher Duncanson-Hales (the casino appellants) that they used to support their appeal.  I concluded that the casino appellants have a strong case - but questioned whether the new LPAT was equipped via legislation and its own Rules to hear some of the matters being raised.

In "The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 5: Wasn't That a Party?" I considerably explored the question of just who can be a party to matters at the LPAT, after having received notice that both the developer and Gateway Casinos wanted to be added as a Party to the proceedings.  I realize now that a lot of what I observed and concluded has not held up to the test of time - so if you're going to skip any one of my posts, this might be the one to target!

I had a crisis of, well not sure what - when I wrote "The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 6: The City Strikes Back!". I explored how the City's response to my Case Synopsis led me to question my own understanding of the issues.  But by writing this difficult piece, which included a serious analysis of one of the Big 3 issues I raised with my appeal, I learned that in fact my paradigm hadn't shifted, and ultimately concluded that the City's arguments against my appeal are actually very weak.

In "The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 7: So Much for the Downtown," I continued with my analysis of another of the Big 3 issues I raised in my appeal - and concluded with a promise to write about the third of the Big 3 issues.  I wrote Part 7 back in October, 2018 - but I have not yet returned to that third big issue.  And I won't for some time yet - but the promise to do so remains.

I last wrote about the KED and the LPAT on December 12, 2018, in "More Misinformation About the KED Coming From City Hall," a piece that is not a part of this blogseries.  Rather it explores the on-going campaign of misinformation being now primarily waged by a single member of Council, Ward 5's Robert Kirwan.  I have to admit that Councillor Kirwan's on-going threats, denigration, humiliation, bullying and his pushing of information that is factually incorrect has made engaging in this appeal process rather tiresome.  When confronted with 17 incorrect items of information before breakfast every day, I suspect not even Douglas Adams would retain the willpower to correct the record on all of them. 

And perhaps that's why I've laid off writing about my experiences for the last little while.  But although this mental and emotional break might have been advantageous for me personally, the fact that I have been falling down on the job of providing my readers with the updates that I set out today when I first started writing this blogseries has weighed heavily on my mind.  Just not heavy enough to actually see me do anything - until now.

Fact is, there has been a fair bit happening with the appeals.  So let's see if I can start getting everyone caught up.

Case Management Conference

Back on November 6, 2018, the LPAT - comprised of 3 Tribunal members - held the first and only hearing event (so far) on the appeals.  It was the Case Management Conference that is prescribed by the LPAT's Rules.  And for the most part, it was an administrative affair.  Given the emotions in the public realm with regards to the matters being adjudicated, after the fact I found out that members of the media and others who were present at the CMC were a little let down that there weren't more fireworks, or that any of the issues were resolved.  But that's not the idea of a CMC - and I don't think any of the Parties were expecting more than what happened - with maybe one exception.

The 'Added Parties'

At the outset of the CMC, lawyers for both 1916596 Ontario Ltd. (the numbered company owned by developer Dario Zulich) and Gateway Casinos petitioned the LPAT to become 'parties'.  This was kind of interesting in that in the past, at the OMB, Zulich would have been accorded party status automatically as the landowner.  If you think about it, any decision ultimately made by the LPAT is going to impact the landowner - so why should the landowner have to approach LPAT on bended knee and request party status?

All of the parties (the 5 appellants and the City) seemed to feel the same way about Zulich's inclusion, and the request for party status was granted by the LPAT with no opposition from any of the other parties.

Gateway Casinos, however, is a bit of a different story.  They are not a landowner, but they have an expressed interest in part of the property.  And they have spent money as one of the 3 development partners (Zulich and the City being the other two) for the Integrated Site Plan - and, perhaps more importantly for this matter, on the Traffic Impact Study.  Originally I had indicated that I would oppose the inclusion of Gateway as a party - but once I learned that they really had engaged in the planning process via their financial commitment to the Traffic Impact Study, I decided not to oppose their inclusion.  Clearly, Gateway has a lot more at stake, financially speaking, than I do so.  So why not?

Taking Issues with the Issues List (or lack there-of)

What came as a bit of a surprise to the parties was the LPAT's admonishment to all of us for not getting together pre-CMC to develop an issues list (see paragraph 21 of the decision - but trust me, it was actually a lot worse in person. I seem to think all of the parties were staring at the floor during this 'discussion').  That was an awkward moment for us all - as I don't think that any of us had ever really given a thought to doing that before the LPAT put the idea in our head that it might have been something that we had taken the initiative to do on our own.  

In retrospect, I'm not sure that I agree with the LPAT's position on this.  Fact is, there were two parties who had just been added at the CMC - both of these parties are now in the process of making certain motions that ultimately might have bearing on any issues list that the appellants and the City might come up with.  I think that's important - and I think the LPAT overlooked it.

We were also asked about the possibility of mediation by the LPAT.  And that's another thing.  Had we all agreed to mediation, any mediation exercise would likely impact the issues list.  That said, though, there wasn't a lot of interest in mediation from any of the parties - at least not until motions have been disposed of.  But even then - the new LPAT process upfronts the adversarial-ness of the hearing.  At this point, there's not a lot of chance to find common ground - not when the serious parties are hundreds of thousands of dollars deep in the process (and that's where they are).

Playing in the Big Leagues

So again, LPAT, if you're reading this - consider these factors when it comes to issues lists.  And I know that you know that under the old OMB process, Issues Lists were usually developed until after a Pre-Hearing Conference (similar to a CMC, although not mandatory) - because it was at the PHC that new parties and participants would be added.  So cut us folks here in Sudbury some slack - we're participating in a brand new process and have only the milestones from the old process to go by.  We're doing the best we can to get all of this resolved.

And I guess that's the one last observation that I have about the CMC that I'll share here.  All of the people involved in the CMC are professionals - save for myself and the other unrepresented party, the Minnow Lake Restoration Group as represented by citizen John Lindsay.  And when professional are involved, no matter how adversarial things get, things do tend to remain calm.  And since John and I aren't known for our rabble-rousing (ok, maybe John is...), I don't expect that we're going to see any actual fireworks at the upcoming hearings.  

But there are sure to be plenty of procedural fireworks!

One of the things that the LPAT did do was allow for some of the parties to bring forward motions, within a certain specified timeframe.  All of those motions are filed, and I'll go through them in more detail in the next blogpost in this series.  Suffice it to say, though, the outcome of these motions is going to materially effect how the LPAT hears the appeals - and quite likely it's going to impact on the level of my own participation - which up until now has been significantly more involved than I thought it would be, to say the least.  I thought I could keep up with everyone, even though I'm unrepresented.  The truth is I'm falling behind, and if it was just me making my own case to the Tribunal, you can bet that I would be dead in the water.

All the more reason that anyone who is thinking of going to the LPAT should take my advice: If you want to win, hire a lawyer. 

Experts and Valid Appeals

Perhaps a little more surprisingly, the LPAT identified a list of 'experts' that it wants to hear from.  The LPAT indicated that the hearing will be an oral one, and the decision that issued identifies in paragraph 28 that there will be 8 experts called to give evidence.  Two are planners for Casino-Free Sudbury/DBIA/Duncanson-Hales appeal; three are municipal planners; one is the developer's planners.  There's also a traffic engineer in there and - here's the kicker - a man by the name of Alexander (Brad) Bowman whom the Minnow Lake Restoration Group identified as its in-house expert and who provided affidavit evidence to Minnow Lake's Case Synopsis.

At the CMC, the solicitor for Zulich indicated that he may bring forward a challenge to Mr. Bowman's participation in the hearing as an expert - or seek to have the appeal filed by Minnow Lake (John Lindsay) declared invalid.  The LPAT remained silent on this, as it seemed a little speculative at the time - but shortly after the CMC, John Lindsay was served with a notice of motion filed by 1916596 Ontario Ltd. to have the LPAT declare his appeal not to be valid on the grounds that the appeal did not disclose any planning reasons.

But instead of doing anything with the motion, the LPAT ruled that the motion itself was out of order.  As the January 4, 2019 decision indicates in paragraph 12, the LPAT gave its permission to hear only certain motions - the Minnow Lake excommunication wasn't one of them!  I hear from John that he spent a couple of sleepless nights trying to meet the tight timeframes for filing a motion response and had finally come up with a 15-page 75-paragraph response to the Zulich motion. 

So that's the kind of stuff you're in for, you Unrepresented Parties, if you want to play in the big leagues.  

Anyway, the LPAT will likely hear the motion orally at some point - and at least John has some notes now that he'll be able to read from.  But given a recent decision of the LPAT involving a motion to over-turn the LPAT's validity screening (Gravelle v Stone Mills (Town), 2018 CanLII 110126 (ON LPAT),) which is already being quoted by other appellants in validity determination matters (Weinhardt v Cambridge (City), 2019 CanLII 16510 (ON LPAT)), I think Zulich should just abandon the motion to remove John - and instead focus on whether it would be appropriate for the LPAT to hear from Bowman - even thought it was the LPAT that said specifically he was a person they wanted to hear from.

Hitting the Pause Button - Rail Deck

Finally, the LPAT advised all parties that they were stopping the hearings clock and putting everything on hold.  This didn't come as a surprise to the parties, who were all familiar with the Toronto Rail Deck Park matter - but it did appear to come as a bit of a shock to the media, who were looking for something tangible to report.  But the story the media took away from the CMC was that everything was going to be up in the air until such a time that the Divisional Court had to hear and rule on matters referred to the Court by the LPAT with permission of the parties in the Rail Deck matter.  

This stated case to the courts will resolve a fundamental matter of natural law that the LPAT's legislation and Rules appears to infringe on: whether witnesses can be cross-examined.  Clearly, the Divisional Court's ruling is going to have an impact on our hearing - and more specifically for me, on me!  Potentially, rather than just getting up and saying my piece about the appeal - which is what I signed up for - if the Divisional Court says that cross-examination can take place, I might be facing down three lawyers who are going to be looking at tearing holes in every bit of oral evidence that I can squeeze into my 75 minutes.  That's not what I expected to have to face when I filed the appeal - but I guess if that's what I've got to do, that's what I'll have to do.

Anyway, based on this column about a preliminary matter in the Rail Deck Park court case, it looks like the Court might also be wrestling with some of the same issues regarding jurisdiction that have arisen here in Greater Sudbury - specifically whether or not new evidence can be adduced or all parties have to rely on what was in front of Council at the time of a decision (see: "Coleman’s Notes: Watching the LPAT at Divisional Court to Figure Out How The LPAT Will Work," Joey Coleman, the Public Record, March 4, 2019).

In the next post in this blogseries, I'll explore the motions that have been filed.  And in the following post, I'll take a look at some of the other interesting matters that have been happening related to the KED appeals.

Thanks for reading.  I'll try not to be such a stranger!

(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)

No comments: