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New planning appeals process not working for anyone

LPAT has failed to deliver on promises of quicker decisions and more support for people fighting city hall 
News this week that the developer behind the Kingsway Entertainment District is looking to buy nearby property as a temporary casino site highlights the frustrations surrounding the province's planning reforms. (File)

News this week that the developer behind the Kingsway Entertainment District is looking to buy nearby property as a temporary casino site highlights the frustrations surrounding the province's planning reforms.

Replacing the former Ontario Municipal Board in January 2019 -- which everyone agreed took too long and was too expensive -- the Local Planning Appeals Tribunal was mandated to make decisions within a year (in most cases), to give more weight to local decisions, and to provide technical and other support to regular people trying to fight a planning decision.

The LPATs were supposed to look at a local planning decision, call witnesses from both sides for clarification, then make a decision whether planning laws were followed. If not, cities were going to be told what changes needed to be made.

If only it were that easy. A year since groups opposed to the KED appealed the decision, there are no dates for the next meeting, the timer on the appeal is stopped and no one has any idea when it will start again. 

While he wouldn't confirm it Monday, a CTV news story over the weekend reported a widespread rumour that KED developer Dario Zulich was looking at buying the Chateau Guay, a motel near the KED site up for sale for $2.5 million.

The story said Zulich would convert it into a temporary location for Gateway Casinos, which is facing significant time pressure with its lease at Sudbury Downs set to expire. The land is zoned C2, which means it wouldn't require rezoning approval.

Gateway spokesperson Rob Mitchell wouldn't confirm the story either, saying only that Gateway is fully committed to building a casino in Sudbury. 

Zulich did say, in an earlier interview, that the LPAT has not delivered the faster decisions the legislation promised.

“I think it could still work as intended, but I guess because it's so new, it new requires some fine-tuning,” he said. “But there's no question we're caught the middle of it and we're just going to have to work the process and wait, I guess.”

Tom Fortin, the businessman deadset against the casino, said his group has spent more than $350,000 so far fighting the KED. While some people think they hope to delay a decision as long as possible, Fortin said the opposite is true. In fact, he's as frustrated as anyone at the snail's-pace process.

“I want the hearing as soon as possible because we are going to win,” he said. “Let's just do this.”

Fortin said the major delay in Sudbury is being caused by appeals of a Toronto planning decision – the Rail Deck Park. The players in that case have appealed to Ontario Divisional Court, which will hear arguments next month on whether the LPAT's streamlined process is constitutional.

Until that ruling is handed down, most LPAT appeals are effectively frozen. And if the ruling strikes down elements of the LPAT legislation, the entire process could be much longer than anyone envisaged.

Another KED appellant, John Lindsay of the Minnow Lake Restoration Group, has criticized the tribunal for a lack of support. It was Lindsay who alerted the media the province was closing all the LPAT support offices – one of the big tenants of the original legislation. 

Steve May – a KED appelant who has a planning background – says closing the support office makes it practically impossible for ordinary people to fight a decision. The abbreviated case management conference held last November was consfusing even for him. Without support, people new to the process will be at a major disadvantage.

“The LPASC (support office) was intended to be complimentary to changes to the land use planning process, providing the general public with advice at all stages of the process,” May said in a message on his blog .

“Navigating the land use process can be tricky, especially if you end up in front of the Tribunal. the loss of the LPASC is likely to have a huge impact on public accessibility of the LPAT.”

David Shelsted, who is heading up the construction of the KED on behalf of Greater Sudbury, said the city was aware that when the project was approved, it would be one of the first decisions appealed under the new rules. So some issues were expected.

“But we were told (the new process was aimed at) empowering more local decisions, that it was going to be faster with prescribed timelines,” Shelsted said. 

That clearly hasn't happened. There were hopes the vetting process for appeals – where the LPAT rules whether the appeal is valid – might have led to a quick decision, he said. At the very least, a ruling within a year was also manageable. But with the Rail Deck delay, all timelines are out the window, he said.

“Unfortunately, it's a new process,” Shelsted said. “So those dates were not met and schedules have been delayed.”

Complicating matters is the fact that, even best case scenario, if the tribunal rules in favour of the city's KED decision, the appellants could still appeal to divisional court. Or if the LPAT amends the city's decision, even slightly, the whole appeals process could start from scratch. 

“We knew that was part of the process,” Shelsted said. “That's why we wanted to make our submission as comprehensive as possible from the outset.

“There's only so much stuff you can control moving forward. So we're trying to outline the case the best we can and to get the decisions backing us as quickly as possible. And then that's our hope, you know, basically that we be given the go-ahead to continue as quickly as possible.”

Darren MacDonald

About the Author: Darren MacDonald

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