OMB Oversteps

Richmond Hill wins Superior Court appeal

NRU
Sept. 14, 2016
By Geordie Gordon

The Ontario Municipal Board does not have the jurisdiction to cap Richmond Hill’s official plan parkland dedication polices, according to a recent decision by the Ontario Divisional Court. In setting aside the OMB’s ruling that imposed a 25 per cent cap on the town’s alternative parkland rate, the court found that municipalities should determine which rate to use. Meanwhile, lawyers for developers that appealed the town’s parkland policies say the court did not provide sufficient direction to resolve the issue and will seek leave to appeal the court’s decision.

In a unanimous decision from the Divisional Court three judge panel, the justices set aside the OMB’s 2015 decision that had capped Richmond Hill’s alternative parkland dedication rate - which allows up to 1 hectare per 300 units or 1 hectare per 500 units for cash-in-lieu - at 25 per cent. [See NRU April 27 GTA edition.]

“The approach taken by the OMB is not only unreasonable on the plain wording of the [Planning Act] legislation, it is inconsistent with the role that it is intended that municipalities will play in deciding individual planning decisions that affect their citizens, one of which, that is the rate for the alternative [parkland] requirement, the Legislature clearly left to them,” Superior Court justice Ian Nordheimer wrote in the September 9 decision.

Richmond Hill planning and regulatory services commissioner Ana Bassios told NRU that the decision is a relief, and will allow the town to effectively plan for parkland needs into the future.

“What the board capped the town at is significantly less than what would have been available to support new growth under the Planning Act. That’s the one real important outcome,” she said.

The decision also validated the duty that municipal councils have in making policies for the communities they govern.

“[The court found that] the board can’t override the municipality’s jurisdiction in this respect,” she said. “It really was a matter of principle for Richmond Hill council ... I think they believe they have a duty of care and responsibility for the long-term success of their community.”

The court’s decision also has broader implications about municipalities’ jurisdiction to make policies for their own communities. Oakville, Mississauga, Markham and Vaughan had all joined the case as interveners.

“It’s about role and responsibilities of municipalities, vis-avis the board, and this was a very clear example that could be brought to the court’s attention, because the [Planning Act] is so clear,” Bassios said.

WeirFoulds partner Barnet Kussner, representing the Town of Richmond Hill, told NRU that the court’s decision is definitive in finding there is only one reasonable interpretation of section 42 of the Planning Act, and the OMB’s decision was not reconcilable with that interpretation. He acknowledged
that the OMB’s motivation in imposing a cap was intended to ensure policy objectives, such as intensification and affordable housing, as well as striking a balance between the need for
certainty by developers and flexibility by municipalities.

However, in trying to achieve the objectives, Kussner said the court found the OMB overlooked three key points: it assumed a statutory authority it did not have; the certainty needed is already contained in the legislation that sets out a rate of 1 hectare per 300 units or 1 per 500 in the case of cash-in-lieu; and the need to recognize municipal councils as responsible levels of government, especially when it comes to land use decisions.

Kussner said that the last point is an important takeaway from the decision, and could have implications beyond this case.

“In my view, it constitutes a clear direction that the court has now given to the board that when it’s engaging in a statutory interpretation exercise and trying to determine where the council’s jurisdiction stops and the board’s jurisdiction starts, it has to take that deferential approach to the same extent that a court would take,” he said. “It was certainly clear to the Divisional Court that we’re dealing with a sophisticated planning staff and council … who are also mindful of the need to facilitate intensification.”

Kagan Shastri partner Ira Kagan, representing Elginbay Corporation and Zamani Homes (Richmond Hill), told NRU that he has a number of concerns regarding the court’s decision. He said that the court erred in finding that the OMB’s authority to modify the official plan did not include the authority to cap the parkland rate.