The people and groups fighting the Kingsway Entertainment District are largely basing their case on matters not related to planning laws, Greater Sudbury is arguing in its official response to the appeal.
Documents posted to the city website Wednesday detail the city's position on the appeals.
The KED would include a new $100-million arena, a $60-million casino built by Gateway Casinos and a hotel, with Hilton Hotels showing interest in the site. However, people opposed to the casino, to moving the arena out of downtown Sudbury and to a proposed parking lot on the site have filed appeals with the Local Planning Appeals Tribunal.
Copies of the appeals can be found here and the city's response here.
The appeal makes several arguments, including that the city has to hold a referendum to gauge whether residents want a casino. A motion passed in 2012 failed to include proper consultation and follow proper process, the appeal says.
“The city did not hold such a referendum and cannot rely on the resolution of May 15, 2012, to obtain its jurisdiction to proceed to consider the casino and grant Planning Act approvals for the subject applications and this tribunal, therefore, has no jurisdiction to approve same,” it reads.
In response, the city says that public consultation on gaming and holding a referendum on the matter is outside of the Planning Act, and the LPAT can only deal with appeals that are based on planning law detailed in the Act.
“Issue 1 does not do this and as such, is outside the legislative authority of the Planning Act sections 17(24) and 34(19) under which these proceedings are constituted,” the response says. “If the Appellants wish to pursue Issue 1, they may do so outside of this LPAT proceeding.”
The appeal also argues that by not considering the socio-economic impact of a casino, they violated the Provincial Policy Statement, which governs planning laws in Ontario.
By not doing so, “council’s approvals of such applications a nullity,” the appeal says.
In response, the city argues that nowhere in planning law in Ontario requires a municipality “to study the socio-economic impacts of gambling” before giving a planning approval. There is language that “directs development away from areas of natural or human-made hazards where there is an unacceptable risk to public health or safety,” but that's not the case here, the response says.
“The Official Plan makes no reference to gambling and makes no reference to requiring socio-economic impact studies when assessing planning applications.”
While the Provincial Policy Statement says cities should adopt policies aimed at “where possible, enhancing the vitality and viability of downtowns and mainstreets,” the city argues that this is a policy aimed at promoting economic development, not a legislated requirement.
“This section of the PPS provides a broad range of considerations with respect to fostering long-term economic prosperity within Ontario’s communities and does not require specific action on the part of municipalities.”
While the Official Plan requires environmental impact studies and traffic studies, it has “no policies that require economic impact studies,” as argued in the appeal.
The appeal also argued the KED should be dealt with as a single entity for planning purposes and as such, the whole project should require an Official Plan amendment. In response, the city says there's no requirement for that in law, that under the Official Plan, facilities for public use such as the arena are “permitted throughout the community,” regardless of zoning. And hotels and parking lots are already allowed for the Kingsway property.
The appeal also argues that allowing the casino is a “conversion of employment lands,” which under planning law, requires a “comprehensive review” before it's approved.
In response, the city disagrees the Official Plan amendment to allow the casino is a “conversion of employment lands,” since a place of amusement “in the form of a casino, is a permitted employment use” already in other parts of the city, including downtown and mixed-use commercial areas.
“The proposed casino is an employment use,” the response from the city says. “The land use planning applications for a casino are not about the city being a willing host for a casino or about the socio-economic impacts of a casino, as a gaming facility currently exists within the municipality and is permitted, as-of-right, in a number of zones contained within the city’s employment area designations.”
In response to the appeal to stop the parking lot, filed by Ward 11 candidate John Lindsay in his role as president of the Minnow Lake Restoration Group, the city argues the appeal is too vague to be dealt with.
Where the appeal is concerned about the additional road salt the new parking lot will add to the environment, and that the added traffic will cause problems, the city responds the appeal doesn't say what part of the decision violates planning laws.
“The appellant has provided no expert planning or traffic evidence to support their generalized concerns,” the response says.
Previous rulings have said it's not enough to say there may be a problem with traffic and parking, so more study should be done to see if one emerges, the document says.
“It would not constitute an apparent planning ground by saying that further expert study is required with the hope that once a hearing is convened, more real issues can come forth.”
The province's Source Protection Plan does address concerns about building in water sheds, outlining “prescribed circumstances that require the development of Risk Management Plans for development in Source Protection Zones in order to protect the drinking water supply.”
Those risk management plans have been approved, the document says, and are in compliance with the Planning Act. And it cites five reports that dealt with traffic studies and the KED.
The appeals document asks the LPAT to declare the decision to approve the KED was a violation of planning law and is null and void. The city is asking for all appeals to be dismissed.
The first case conference on the appeal is scheduled Nov. 6.
