Defending your right and left hands

It’s an understatement to say Greg Dalton is passionate about protecting Bennett Lake.

Dalton is a founder of Friends of Bennett Lake, a group dedicated to protecting the shallow South End water body. It’s easy to understand why he and members of the group are so passionate. Walking through the brush on Virginia Drive, up a hill and down to the lakeshore, you emerge into a serene, pastoral setting. It’s a different world, with birds and water and a fresh lake smell rarely found in the heart of any city.

On Oct. 16, Dalton and his group heads to an Ontario Municipal Board pre-hearing at Tom Davies Square to fight a developer -- Dalron Ltd. -- that plans to build 15 homes on Fairlane Drive, a stone’s throw away from the watershed. As of early September, the group had raised $20,000, two-thirds of the way to their goal of $30,000. The money is being used to bring in experts to testify at the appeal.

“The OMB only recognizes experts,” Dalton said, adding the group is hoping to bring in an expert in traffic, water, a biologist, a surface water engineer and a hydrologist.

Those experts will go toe-to-toe with the analysis from the city’s own planning staff, which approved Dalron’s plans, an opinion later confirmed by the planning committee and city council.

Dalton and other supporters of the lake are hoping the OMB will do what it very rarely does: reject advice from municipal planners.

Greg Dalton has been fighting a housing project next to Bennett Lake for the last eight years. An appeal of a decision to allow 15 homes to be built near the lake is set for Oct. 19.

Aaron A. Moore, who wrote his doctoral thesis on the OMB and will publish a book on the topic in January, said the reason city planners’ opinions usually win is because they offer the least biased opinion of anyone involved in the process.

That’s because of the unique structure of the OMB, the most powerful body of its kind anywhere in Canada. Not only can the OMB accept or reject decisions made by municipal councils, it can impose one of its own. Rather than answer to local politicians, city planners answer to the OMB. So their opinions are designed to conform to provincial rules and regulations, rather than to please politicians or developers.

“The OMB really likes to side with city planners over and above of any other expert,” Moore said. “The developers’ urban planners are clearly going to be supporting whatever the developers want to support. If the city has to hire its own external urban planners, they’re going to be supporting whatever side the city has taken. So that’s why the OMB tends to favour whatever side the city planners have supported.”

As part of his thesis, Moore studied OMB appeals in the City of Toronto and found, in 60 to 70 per cent of the cases, the OMB sided with the city planners. And in cases where they didn’t, it was because of mistakes on the part of planning staff. 

During the time period when he studied the decisions, Moore said Toronto had just hired new planning staff. And it was mainly the newer staff that made the mistakes. So when it comes to evaluating the decisions of experienced planners, the OMB rarely goes against the opinion of city planners, he said.

“In most of the decisions, the OMB would simply affirm the decisions made by the city’s planning staff,” he said. “In Ontario, planning staff know their recommendations to council could eventually come before the OMB. So planners usually just give their best, unbiased advice. And because of that, when it goes before the OMB, it’s the most unbiased advice.”
 

In most of the decisions, the OMB would simply affirm the decisions made by the city’s planning staff.

Aaron A. Moore,
Expert on municipal planning

That gives local politicians an out, Moore said. They can have their planning cake and eat it, too. They can vote against a proposed development, even when they know it follows the city’s planning guidelines. So they appease residents in the area who oppose the development, knowing full well the developer can go to the OMB and have the decision reversed.

“In a ward system, you have these residents organizations that can actually threaten the base a councillor relies on to be re-elected,” Moore said. “The councillor knows they don’t have to make a hard decision, because they know by going against their own planning department’s advice, they’re going to lose. That happens constantly. It’s a significant issue.

“I can understand their position. If you’re given an out like that, why wouldn’t you take it?”

Such was the case with a proposed apartment building on Long Lake Road that received all the necessary approvals from the planning department, but ran into major opposition from residents. City council voted to reject it, but when the developer appealed to the OMB, the city decided not to contest it further.

Similarly, albeit on a much larger scale, the planning committee rejected a 192-unit development Dalron planned for Howey Drive area in Minnow Lake, even though city planners recommended approval. Dalron is appealing the decision, but the city has decided it will hire outside experts to fight that one.

John Lindsay, who’s active in fighting Dalron’s plans for Minnow Lake, knows defeating the OMB appeal will be difficult, but says it’s a battle worth fighting.

“If we just went according to what lawyers and judges said, the citizens would have no input whatsoever,” Lindsay said, who admits he’s never won an appeal at the OMB.

The argument for building in areas like Minnow Lake is known as densification. Simply put, the idea is to have more people living closer together. In a city as geographically big as Sudbury, encouraging more development around existing infrastructure is essential to maintaining it. Otherwise, more water, sewer and other services would have to be extended even further, creating a situation where local taxes have to skyrocket in order to maintain infrastructure.

But Lindsay said Howey Drive is a bad area for the city to apply that particular policy.

“Why does everything have to be squeezed into an environmentally sensitive area like Ramsey Lake?” he said. “It may be a planning priority, but is (densification) a citizen priority? Seems to me that the more infilling you do, the less quality of life you have.

“And in a city as large as we are, why would we allow development around our lakes to the point that we’re harming them? You’re almost peeing in your own pond.”

A former school board trustee, Lindsay said he knows full well the role politics plays in these types of decisions.

“You always have to stand up for the electorate, for the people who put you there, and let the staff and bureaucracy take the fall for you,” he said. “Say someone comes to you with a stupid idea. I’m going to say to you, ‘I’m going to bring it up with staff and the bureaucrats and whoever else.’ And they’ll shoot it down, but I’m still the hero because I stood up for you.’ ”
 

Council has almost conceded the issue on Long Lake Road, because there’s no real rhyme or reason why it shouldn’t be accepted.

Dave Kilgour,
Councillor, Ward 7

While rejecting the idea that his opposition is rooted in NIMBYism (not in my back yard), he does make the common complaint of NIMBY-inspired groups: why can’t these developments take place somewhere else -- Valley East, for example.

“There’s practically unlimited room for development there,” he says. “Why does everything have to go in the centre? And probably those communities would be more amendable to these types of developments.”

Sudbury resident Mark Nyman was a councillor in Chapleau in the early 2000s. He said it wasn’t uncommon for Chapleau council to side with public sentiment, fully aware the OMB would overturn their decision.

“I’ve seen the shenanigans,” he said. “I’ve seen the nonsense that goes back and forth ... They know the OMB is going to approve (the Minnow Lake development). I bet you every single one of them is saying to themselves that this is going to be good for Sudbury.”

He says Chapleau council engaged in “tactful honesty,” a term he uses to describe political decisions that are popular, but won’t endure scrutiny.

“It’s what they do when a huge mob shows up. It’s a smart political move, you must admit,” he said. “You get a large enough mob out, is a politician really going to stand at a podium and say they’re going through with this anyway?

“As soon as I saw that the city’s engineers approved it, I realized that council was playing tactful honesty on this one.”

When the Minnow Lake project was turned down, Ward 7 Coun. Dave Kilgour, who chairs the planning committee, said publicly Dalron would likely win an appeal.

“I’ve said all along that I think the OMB will probably overturn council’s decision and go along with the decision of the planners,” he said. “Council has almost conceded the issue on Long Lake Road, because there’s no real rhyme or reason why it shouldn’t be accepted.”

While political considerations can’t be ignored, Kilgour said local and provincial planning guidelines should guide planning decisions. But he rejected the idea the committee should ignore the will of the people, or that going against the advice of city planners is a cynical political ploy.
 

We feel city staff ignored the provisions in the Official Plan for Lo-Ellen.

Greg Dalton,
Founder, Friends of Bennett Lake

“We have to consider how (a development) fits in with or conforms with what’s already in that area,” he said. “And there’s definitely room for those factors to be considered, even if they’re not in the Planning Act.

“But that’s how we get into situations where your right hand is arguing with your left hand. And that’s when we have to make a decision whether to defend your left hand, so to speak, or your right hand.”

So while the Long Lake Road appeal is not being pursued, the Minnow Lake one is, Kilgour said, because there are valid arguments to make.

“(Opponents) came through with some really compelling arguments,” he said. “If you look at Howey Drive, it is going to be a traffic trap. So their arguments would give the OMB something to think about. At least it wouldn’t be automatic that it’ll go against the city and for the planners.”

Dalton also believes he and the Friends of Bennett Lake have strong arguments. He says planning staff failed to follow the rules when it came to doing an environmental assessment, a traffic study, protecting endangered species (whippoorwills live in the area) and access to trails in the area.

“Planning committee didn’t address any of those issues,” he said. “We wouldn’t have hired a lawyer if we didn’t feel like we had a good case ... We feel city staff ignored the provisions in the Official Plan for Lo-Ellen.”

He also rejected the idea that this is another NIMBY case.

“I mean, the development is just over the hill from me, but I grew up in an inner city. I don’t mind neighbours,” he said.

“We’re not saying we don’t want development. We’re just saying respect the Greenspace Advisory Panel, respect the Official Plan and respect what you told us six years ago when you said you would protect the watershed.”