Legal challenge to SD67

Summary of legal documents filed June 12, 2008

• Cover letter


• Notice of Motion


• Petition to the Court

Affidavits

• David Perry was on Council since 1990 and Mayor from 2002 to 2005 - David explains the community need for both facilities and the lack of public or formal meetings as well as the history of SONG & PLEASE - he and all the other living Mayors agree both buildings should be kept until replacements are ready for use


• Tom Siddon draws on his Parliamentary experience and engineering background to explain the need, plus the fine acoustic quality of the auditorium - Tom details the numerous requests/attempts to save the buildings and the process that lead up to the June 5/08 decision to file the Petition


• Sandra Congram focuses on the need for the gym in today's world where fitness facilities are at a premium; she also talks of her presentations to keep the facilities and that now is not the time to tear down functional facilities when the need is so great


• Marylin Cleland Barnay focuses on the need for the auditorium and the need for a Performing Arts Facility Plan that meets projected community needs; she is also critical of the Board for not allowing public input


• Adeline Rheaume reveals the overwhelming public support in favor of keeping the facilities as- 97% - 2671 to 85 and how the Board process on May 20/08 was a farce including the absent trustee, Kevin Andrews, saying his "nay" vote from Cuba!


• Ron Mason identifies the cost of up to $1.2M to bring the buildings up to standard; that the Board's plan to the Ministry did not include either facility; and that the asbestos can be effectively dealt with


• Al Kenyon confirms the "Six Mayors" support & cautions that the City & Board are taking a real gamble by demolishing before replacements are ready; Al also comments on the City apparently deliberately creating a facility deficit as the City seems to think it will have a better chance raising the $30M it needs for the new performing arts center, if the auditorium is down


• Dodi Morrison explains her opposition to the demolition and the lack of public consultation


• Dave Shunter highlights his lengthy experience as an educator and trustee and that the auditorium and gym were never part of the Board's plan; when he left the Board at the end of 2005, he thought the City would be taking over the facilities


• Keith Lindstrom another long time educator and trustee explains that even his own plan was not considered, even though he was a trustee at the time; he also confirms that "the plan" was to "knock 'em down" from the beginning. Keith says there was no public meeting where the final design proposal was presented


• Michael Brydon the professor, focuses on the numbers and Michael Brydon, the dad, focuses on the need. The $1,142,000 Greyback estimate, his paper "Saving the Former Pen-Hi Gymnasium and Auditorium: A Decision Analysis", and his Cost Assessment of SOPAC are filed with the Court


• Beth Campbell reinforces that she and former Mayors Messmer, Tinning, Pearce, Kenyon and Perry have all had decades of public service and they unanimously agree, despite the fact their politics are different, that the buildings should stay


• Cory Goodrich, an articling student at Johnston, Johnson & Company, reviewed all the School Board Minutes and other public documents and confirms the dates set out in the Petition

Ron Barillaro: Weighing the need for performing arts centre

The following appeared in the June 04, 2008, edition of the Western News:

The see-saw discussion, rhetoric, dialogue, hyped-press — call it what you will, it seems to ebb and flow at various times and from various individuals or factions. I guess that the real question is: Do we really urgently need a new performing arts centre? The jury is still out on this question and may be for some time.

The quandary over the saving or demolishing of the Pen High facility has brought controversy, discussion, finger-pointing and the press to the fore on several occasions. One should look at other communities our size and see what sorts of facilities they have and how old they are and what types of entertainment have been hosted.

Case in point is Brockville, Ont. (pop. 36,900). Here is a city approximately our size. It has a performing arts centre, although it does not have a convention centre the size of ours. Their arts centre was built in 1895, with many updates and upgrades over the years. There is also a very respectable art gallery in the centre. Because of geographic location, it can and does attract some world-class acts and talent. All one has to do is look where the centre is located. It is within a 200-kilometre radius of major Canadian and U.S. centres in New York state. There are New York state cities as close as 40 kilometres. Our own cities of Hull and Ottawa are within 90 minutes driving time. The city of Cornwall, Ont. is a stone’s throw away.

The population support and patronage support is almost a given. Some of the events that have been presented there are: Harry Connick Jr., Tragically Hip, Glenn Miller Orchestra, Peter Appleyard, Blue Rodeo, Great Big Sea, Roger Whittaker and Randy Bachman, to name but a few. There is a large area jazz festival that is a yearly event here. This centre is the home stage for St. Lawrence College with such productions as CATS, Beauty and the Beast, A Chorus Line and 42nd Street. The classics are represented as well with piano recitals and symphony concerts. Oops, getting carried away. Back to the subject at hand. When and if this proposed performing arts centre is built, who will we attract as patrons within a 200-km radius? Will people from Wenatchee come? Will people from the Kamloops area come? What about people from Trail or Cranbrook? The answer is ... who knows?

The next question that one needs to ask is: other than localized talent (e.g. the symphony and classical presentations, some of which I have enjoyed) who will we attract? We won’t be a Brockville, Ont. for obvious reasons. We won’t attract any acts that Kelowna couldn’t attract for obvious reasons. There isn’t a pressing need for a college interest in pursuing world-class stage productions. It begs the question: Why do we need a new performing arts centre?

Bottom line would be that taxpayers and taxpayers’ children and their children would be paying for something that would attract a few stalwarts to smaller productions. The next question might be the fact that the plans are not finalized, funding is not totally in place and commitments for funding from major government players is talked about but not in place. Who says it will be in place any time soon? If and when this project gets off of the ground, what will building costs be at that time? How much cost overrun will there be?

When all is said and done, how can the city fathers and others justify this project without realizing that costs go up and that we are a small city population-wise. It’s nice to think that the big government arm and the short casino arm will offset the taxpayers’ costs. That’s great in theory but most of us know better what the realities are or will be.

To entertain such a project is pure folly. The larger arms of government have just “ponied up” monies for a building project that is 300 miles over budget, due to construction cost increases and any other lame duck excuses that can be trumped up at the civic level. What makes city fathers think that these levels of government are going to cough up more monies for a project that is still a dream? If $30 million is the cost today, what will it be by the time that this venue comes to fruition in say two, three or even five years?

This also begs the question, Should succeeding councils have to deal with the issues set in motion by this council? Are we, as taxpayers, that gullible that we can accept this fact? And, to hear Mayor Kimberley saying that the taxpayers will not be bearing much of this load, is sheer and utter nonsense. Governments aren’t going to foot the total bill, nor can casino revenues or other grants. How much can we as taxpayers be asked to pay, so as to cover the cost?

Fellow taxpayers, now is the time to make known you sentiment if you don’t want our children and their children to be paying for something that we cannot really afford.

Michael Brydon: Another white elephant

The following letter appeared in the Jun 4th edition of the Herald:

Proponents of the 700-seat South Okanagan Performing Arts Centre (SOPAC) believe that they have no chance of getting funding for a new facility as long as the 700-seat former Pen-Hi auditorium is standing. What these folks fail to recognize, however, is that they have little chance of getting funding, even if the Pen-Hi auditorium is ground to dust and paved over. Unfortunately, our local politicians have no way of knowing this because, as Mayor Kimberley’s has recently admitted, “this council has not deliberated on the financing of [a new] performing arts centre”. Our leaders are, in effect, flying blind.

Such disregard for the fine economic details is dangerous. Indeed, the last time this council told us to trust it on a major capital project (the events centre), it cost the taxpayers of Penticton an extra $17M. With an eye to avoiding a similar fiasco, I have included a cost comparison of various alternatives for a large performing arts facility. The proposed Penticton arts, recreation, and culture (PARC) complex incorporates the existing, taxpayer-owned buildings made surplus by the construction of a new Pen-Hi (the Shatford building, the north gym, and the auditorium). Admittedly, the former Pen-Hi auditorium will never have a revolving stage (and all the economic benefits and spillovers such a feature entails); however, the former Pen-Hi buildings could provide Penticton with a large performing arts venue, a smaller studio theatre, and a magnificent gymnasium for a fraction of the cost and risk of a new performing arts centre. Given that the city is broke and has many other priorities, including sewage treatment, swimming pool modernization, and increased policing, my guess is that most taxpayers would prefer a cheaper, adequate performing arts centre to another magnificent and costly white elephant.
But our politicians have no intention of finding out what taxpayers think. They already know that at least 2,600 people in the community have expressed dismay with their decision to demolish the Pen-Hi buildings. Given that the margin of victory in the last mayoral election was only 500 votes, the more arithmetically-astute politicians may reckon that they are in a race against the electoral clock. Their only hope of getting their pet project built is to eliminate the only affordable alternative before voters make their voices heard in the fall. Why else would city council and SD67 be so loathe to give voters a real choice in a referendum?

Denis O'Gorman: Strategy needed on auditorium

The following letter appeared in the March 28, 2008, edition of the Western News. Mr. O'Gorman is a community planner and a former Assistant Deputy Minister in the Ministry of Environment, Lands & Parks

In his letter published March 14, Gerry Karr raised the spectre of a public policy hijacking by a special interest group. His target was the group advocating retention of the Pen High auditorium. However, the advocates for a whole new centre, the Penticton and District Performing Arts Facilities Society, are already beneficiaries of a $2.5 million land grant plus significant funding for both feasibility and business plan studies from the city, suggesting they have made substantial inroads on setting public policy in Penticton.

Rhetoric about hijacking is unhelpful at a time when détente, analysis and dialogue would seem more valuable. As starting points of agreement, most parties including the above key groups would agree that Penticton’s downtown needs enhancement; an arts precinct and corridor could be a valued contribution to downtown vitality; and a new arts facility could help meet cultural aspirations, enhance livability and potentially also tourism.

Realizing these high objectives, however, requires a fuller downtown design strategy, a clearer picture of realistic tourism goals in a very competitive market and focused analysis of realistic cultural expectations. These have yet to surface.

Regarding a city-funded “needs assessment,” this, to my knowledge, has yet to be made available to inform the thinking of Penticton’s taxpayers. Similarly, a study which allegedly confirms financial feasibility has yet to be made generally available. There is considerable reason for skepticism given the extensive commitments to the events centre, rising property tax levels, and denial of an appropriate level of financial support to existing cultural facilities such as the Art Gallery of the South Okanagan.

Moreover, there appears to be the assumption by the arts facility society of considerable federal and provincial contributions without the sources for such funds being identified. Finally, the issue of potential internal competition with the events centre should be openly examined as part of a market analysis.

A starting point for the city would be to post the completed studies (on both cultural needs and financial feasibility) on the city’s website. This should be quickly followed by a preliminary design study to establish general physical feasibility of an Ellis Street site.

Similarly the deliverables from the $50,000 allocated to the performing arts facility society should be specified. This is a reasonable expectation given that most organizations develop their business plans using internal resources and available templates.

In the meantime, the reality of the Pen High auditorium and north gym, as “birds in the hand” should not be dismissed. Of course, they don’t represent “auditorium beautiful” and supporters acknowledge several shortcomings such as inadequate foyer and backstage space. However, the present auditorium and gym are standing and apparently upgradable. Moreover, upgrading costs are more likely feasible in terms of overall taxpayer impact. Plus an existing auditorium (and gym) can meet diverse community needs while carefully considered financial and development plans for a more permanent venue are developed.

A considered “side-by-side” analysis of the upgrade and new facility options including capital and operating costs would be especially helpful. It should identify funding sources and the respective implications for the city’s finances given clear funding assumptions. This information might even help guide a voter referendum on the question.

Certainly choice should not be pre-empted by a rush to demolish the Pen High auditorium and gym as is apparently being pursued by the school board. Sure, it’s Plan B from their perspective but overall public benefits of having an interim (10 years perhaps) auditorium and accessible gym may well warrant a sober second look.

And should provincial funding formulas be the driving concern of the school board, couldn’t they and any associated policies be revisited? With the help of our MLA, perhaps a staged building retention and transition strategy to best represent the overall civic interest might be forged. Constructive collaboration, as was done for ball field upgrades, would seem to present Penticton taxpayers their best option, at least while a consensus-based strategy on cultural needs and facilities is developed with both the city and school board actively engaged.

Jim Hewitt: Community’s interest should be priority

The following appeared in the March 26, 2008, edition of the Western News. Mr. Hewitt was the Member of the Legislative Assembly for the Okanagan-Boundary region from 1975 to 1986.

This letter is in response to Gerry Karr’s letter entitled, “Public policy being hijacked” in the March 14 Penticton Western News.

Gerry is concerned about the special interest group known as the Penticton League of Sensible Electors and feels they are trying to undermine Gerry’s “special interest group” known as the Penticton and District Performing Arts Facilities Society. Regardless of what they are called, there are two groups of thought in this city.

This writer has no quarrel with either side, however, as a resident/taxpayer I am concerned about the community as a whole. I always have been of the view that elected officials, whether they are the city council or the school board, have a dual role to fulfill. Both roles must be considered. The first is their fiduciary role or the management of taxpayers’ dollars. The second role is that of good governance or properly conducting the affairs of, and service to, the community.

To demolish the Pen High auditorium this year without a replacement facility is not good governance. It would mean this community will be without an auditorium or performing arts centre for the next five or more years. It seems to me we can have a goal of a new performing arts centre with proper planning and financing. The city has already bought the property on Ellis Street and has contributed funds to the society so the concept has been endorsed and it is a good one — but the decision to tear down the auditorium at this time is not.

I know there are costs involved in maintaining the auditorium. The council and school board can claim good management of taxpayers’ dollars (their fiduciary role). However, their role in providing service and facilities to the community (their governance role) has not been met.

To create a parking lot and deny Pen High students and teachers an auditorium for band, theatre, assembly etc and the public an auditorium for cultural events, public meetings etc. is not good governance.

I believe the “special interest group” that Gerry attacks looks forward to the opening of a performing arts centre as much as Gerry… but in good time and with proper planning. While the school board and council have had professional input, it is with regard to the facility not with the proper governance of a community. Let’s face it — the “professionals” are only responding to the request of the council and/or school board.

I would hope the council and school board challenge their staff and professional advisers to work to accommodate their public, rather than attack “special interest groups” who have nothing to gain personally but are concerned about their community.

The city council and school board should delay the demolition timetable and not just consider the dollars involved but also consider the building’s importance to the community while the planning and construction of the performing arts centre takes place.

Michael Brydon: Is it too late?

There are some in Penticton who believe that City Council and the Board of School District 67 are making a serious error by demolishing the former Pen-Hi gym and auditorium to make room for a parking lot. I formally joined a group opposed to the city and school board's plan relatively late (early 2007) but I am assured that opposition to the plan has existed since it was first proposed. Various dissenting groups have formed and recently, the dissenters have been re-energized by the support of some high profile, trusted members of the community. These newcomers have brought not only additional credibility and political clout, but also new knowledge, ideas, and fresh insights into why the former Pen-Hi gym and auditorium should not be destroyed.

Unfortunately, a common theme in the responses from those in power (and also in newspaper editorials) has been that the decision to destroy the buildings has already been made. Defenders of the decision ask where we were two or three or four years ago. Superficially, it seems like a reasonable question. However, this is precisely the same closed-mindedness we uncover when we examine recent history's most spectacular decision making failures. For example, dissent within John F. Kennedy's cabinet was suppressed in the weeks leading up to the Bay of Pigs invasion in April of 1961 even though there was much evidence that the invasion plan was inherently flawed and that conditions in Cuba were substantially different from those assumed during the initial planning stages. The Bay of Pigs invasion was an unqualified disaster and Kennedy realized that the root cause was a systemic flaw in the decision making process. The remainder of Kennedy's administration—which was characterized by some notable decision making successes, including a measured response to the Cuban Missile Crisis—was dedicated to rooting out false consensus and groupthink. JFK went as far as designating his brother, Robert, as an ongoing “devil's advocate” within cabinet. The Challenger Space Shuttle disaster provides another example in which last-minute dissent was suppressed by a “the decision has already been made” mentality. In this case the decision was to launch the shuttle even though several junior engineers expressed doubts about the impact of colder-than-normal launch conditions on critical O-rings. Subsequent inquiries identified systemic decision making flaws, not O-rings, as the root cause of the disaster.

Obviously, these examples are on a much larger and more tragic scale than the fate of a few buildings. But the Bay of Pigs and the Challenger disaster lessons have become an important part of the curriculum in many engineering and business schools. The stories are used to teach professional decision makers to value flexibility, to seek disconfirming information regardless of its source, and to delay committing to a course of action until absolutely necessary. Unfortunately, several prominent decision makers in Penticton either have not learned these lessons or have dismissed them as inconvenient. Private citizens of this community have taken the time to do some of the homework and due diligence that the city and school board seem unwilling to do (some of this is documented here). However, upon presenting new evidence to these decision makers, we are told that we are “willfully ignorant”, we are called “interlopers” and asked how we could have the “temerity” to question their judgment. In short, there is much name-calling, but little new evidence or rebuttal. This type of response is so at odds with contemporary decision making practice that I cannot help but think that we in Penticton are headed for our own decision making fiasco.

Oliver saving their school auditorium

The following appeared in the 12 Mar 08 edition of The Oliver Chronicle. The most interesting aspect of this story (apart from the fact that people in Oliver think their old auditorium is a valuable community and teaching asset) is that specific programs for federal and provincial funding are identified by name. This is surprising because Mayor Kimberley stated very clearly in the 22 Feb 08 press conference that no funding programs exist for such facilities. Hmmm. Very odd.

Referendum will be needed to save Venables Auditorium through Town

By Karen Knelsen

Frank Venables Auditorium will be getting several big improvements if a couple of large grants Town will be applying for come through.

The grants won’t cover the complete cost of a renovation and upgrade, but a referendum to borrow some money would give residents of Oliver and the rural area the chance to say if they are willing to pitch in with an increase in taxes – a total of about $31.38 per home, for the next 20 years, for an average single-family home (based on property value assessments averaging $285,000).

Previously, school auditoriums were funded by the province’s Ministry of Education, but several years ago, that provincial government money stopped flowing.

School District No. 53 has since been paying for basic operational costs of the building, along with fees charged to user groups. Soon, the district won’t be able to support the auditorium any more, and the money to keep the building up and running will have to come from somewhere else.

Tom Szalay, the town’s municipal manager explained the grants. The first of the two is from Towns for Tomorrow, a program run in conjunction with the province’s ActNow BC.

"The grant program allows a maximum grant of $400,000 and that grant has to be matched partly by local funding," Szalay said. Matching that amount isn’t as big a task as it may seem. "It only has to be matched by 20 per cent local."

The application hasn’t gone forward yet – it has to be approved by council first, and Szalay would look for that approval on Monday, March 10 at the regular open council meeting.

"Staff has put together more details on the application, we’ve got a formal resolution going to the council meeting on Monday night asking for them to say ‘yes,’ they authorize staff to make this application on their behalf."

The other available grant does come from the federal government, said Szalay.

"(It’s) called Cultural Spaces Canada. We have not applied for that yet, we intend to. That one will pay for up to one-third of building renovations and up to 40 per cent of specialty equipment – things like lighting, or sound systems – maybe even theatre seats."

Szalay said if all the funding comes through on time, Oliver could see a referendum on borrowing the remaining amount of money required for upgrades on the November election ballots.

"We figure that on the basis of the $4 million project, we can apply for about $1.4 million from that grant program. If we’re successful on that, and if we’re successful on the provincial one, that would leave about $1.7 million short. The only place we can identify where that would come from is from the local community."

The school board has identified an amount of $500,000 that could be redirected in the SOSS renovation and rebuild toward the auditorium, which previously had no place in the budget allowed to them by the Ministry of Education. That $500,000 has been included in the amount the Town has applied for.

A report done by Bevanda Architecture in October 2007, after consultations with user groups and theatre technicians, features three groups of items the facility needs based on priority levels high, medium and low. Only the high priority items have been included in a $4 million budget for improvements to the auditorium.

Items on the list include new theatre seats at an estimated cost of $249,326, new floor finishes, new wall and ceiling paint, and a new balcony railing, along with other improvements to the balcony, totaling $133,039, and upgrades to code requirements, totaling $241,3198, and including new washroom facilities.

Alison Podmorow, a drama teacher at Southern Okanagan Secondary School (SOSS) uses the auditorium, which is attached to the school, frequently to teach her classes. She can’t imagine a better place to hold her classes, or school gatherings. "To replace it would be ridiculous. We wouldn’t be able to."

She knows the facility isn’t perfect and it needs a lot of work to bring it up to community theatre par – alongside communities like Winfield and Summerland, which both have similar fine arts outlets.

"They’re both attached to the high school. The high school uses them but the community also funds part of it, and they’re amazing facilities," she said.

The Venables auditorium may not currently be on the cutting edge regarding lighting, sound, and furniture, but Podmorow said there is one feature belonging to the building that makes it unique among other structures in Oliver.

"It’s a great size," she said. "The strongest point of it is the size. We use it for our full school assemblies. We would never be able to have the whole school together in a different kind of facility."

The referendum would be put to both town and area C residents.