Judge’s OK to appeal OMB decision on parkland ‘big’ victory for Richmond Hill

Markham, Vaughan supported Richmond Hill in fight

Yorkregion.com
April 21, 2016
By Kim Zarzour

A decision by the Ontario Superior Court of Justice this week is being hailed as a victory for Richmond Hill and for those who wish to retain greenspace in fast-growing suburbs around the GTA.

Divisional Court Judge Wilton-Siegel has given the Town of Richmond Hill permission to appeal last year’s OMB decision that placed a cap on the amount of parkland a municipality can seek from developers.

That precedent-setting decision, by OMB vice-chairperson Jan De Pencier Seaborn, ruled against the Town of Richmond Hill requiring developers to set aside park space or cash-in-lieu at a rate of one hectare for 300 residential units.

It had been an attempt by the town to preserve greenspace and offer parks for new residents as the town grows more urban, but Seaborn struck it down last January, saying the town must cap its requirement at 25 percent of the developable area of the site or the cash-in-lieu equivalent.

The town argued this would limit a municipality’s ability to pay for parks as their communities grow at a rate that is mandated by the province.

Four other municipalities - Markham, Vaughan, Mississauga and Oakville - threw their support behind the town, saying the OMB overstepped its bounds and impaired their ability to determine how much greenspace their communities need.

Developers Elginbay, Zamani Homes, Halover Investments, Montanaro Estates, William and Yvonne Worden, Robert Salna and Salna Holdings opposed the town in its motion to set a parkland rate.

In a Toronto courtroom yesterday, Judge Wilton-Siegel agreed with the town’s request to appeal Seaborn’s decision, saying there is “sufficient reason to doubt the reasonableness of the board’s [OMB’s] statutory interpretation”.

It also raises the issue of the extent to which the OMB can override the discretion of municipal councils, Wilton-Siegel said.

The fact that four other large urban municipalities obtained intervenor status in the proceeding and supported Richmond Hill indicates the issue is a significant one, she said.

For more than five years, the town has waged a battle against developers to secure greenspace.

This week’s ruling is an important victory for the town, and a rare case of the courts allowing an appeal to an OMB decision, said Ana Bassios, Richmond Hill’s commissioner of planning.

The next step will involve a hearing before a panel of three divisional court judges for a final decision on Richmond Hill’s efforts to control greenspace.

Ira Kagan, solicitor for Elginbay Corporation and Zamani Homes (Richmond Hill) Ltd, said he is confident that the panel will uphold the OMB’s decision - “the combination of weeks of expert testimony and properly, in our opinion, balanced the need for parkland with the provincial objectives of affordable housing and intensification in planned intensification areas.”

Other municipalities are watching with great interest, as they, too, struggle to provide parkland for rapidly growing areas.

“The implications of this ruling are significant for the entire municipal sector throughout the province and its ability to manage its parkland planning as part of the development process,” said Michal Minkowski, Senior Legal Counsel at the City of Mississauga.
“This appeal seeks to give municipalities some clarity on how much parkland we can provide our residents. I’m glad to see it moving forward,” said Oakville Mayor Rob Burton.

“This is a big one, not just for us but ... it speaks to communities’ fundamental ability to provide parkspace,” Bassios said. “Without the ability to set parkland or cash-in-lieu rates for high-density development, we won’t have the resources to do so.”

Municipalities may need to turn to other sources, such as the residential tax base, to provide outdoor space for a growing population, she said.

The City of Vaughan shared that view and concern.

“If the OMB decision is not overturned, there is potential that the OMB could impose the inclusion of a similar cap on the city’s policies, as well as in other municipal official plans,” Vaughan staff warned in a report to council committee of the whole. “It is staff’s view that the OMB exceeded its jurisdiction by imposing the cap.”

“As a growing community, it’s important to balance the needs of our residents with our increasing population and provincial legislation that requires intensification,” Mayor Maurizio Bevilacqua said yesterday, in response to the ruling.

“This decision is a step in the right direction, as it is vital that municipalities have the discretion to make development decisions that best meet the needs of their city. While this issue is still before the courts, it’s promising and reflects our commitment to govern in the best interests of our citizens.”

Markham Mayor Frank Scarpitti said he is ecstatic with this week’s court ruling.

“It is it’s becoming increasingly difficult to carry through with the premier’s policies, with the Places to Grow Act and intensification, when provincial agencies are acting the contrary. She wants us to intensify, but we still need to be able to collect money for parkland for people who live in condos.”

The OMB ruling would have dramatically impacted high-density locations in Markham and other municipalities, hitting Markham to the tune of $100 million in lost parkland over the next 20 years, according to a City of Markham report.

“Not only was it a wrong decision, but it went outside their jurisdiction,” Scarpitti said. “Provincial agencies can’t trump provincial laws. We still have to argue the case in court, but at least we’ve been given the opportunity.”