Richmond Hill wins court battle against OMB over parkland
An Ontario court has ruled that the Ontario Municipal Board exceeded its mandate when it set new policy on parkland.

TheStar.com
Sept. 17, 2016
Noor Javed

The Town of Richmond Hill has emerged victorious in its challenge of an Ontario Municipal Board decision that would have significantly reduced the amount of parkland the municipality could demand from developers in exchange for building condos in the booming suburb.

In a decision released this month, a panel of divisional court judges struck down a 2015 OMB decision that set a cap on how much green space the town could request from builders.

It also found that the OMB — the provincially legislated board with the power to overturn municipalities’ planning choices — exceeded its mandate when it demanded the town use the rate it had set, and not the one determined by the Planning Act.

“The approach taken by the OMB is not only unreasonable on the plain wording of the legislation,” says the divisional court decision. “It is inconsistent with the role that it is intended that municipalities will play in deciding individual planning decisions that affect their citizens. ”

Mayor Dave Barrow said the town took a risk when it challenged the OMB in court, but the principle of being “able to determine and shape the future of our community was a principle worth fighting for,” he said.

Ana Bassios, the planning commissioner for Richmond Hill called the ruling “absolute vindication for Richmond Hill council.”

“And now, since the board can’t override council’s policy in this situation, it’s a great relief that Richmond Hill will now be able to acquire the parkland the future population will need,” she said.

This means that other GTA municipalities such as Vaughan, Markham, Oakville and Mississauga — who had intervenor status during the court proceedings — will also be able to “decide the rate best for their community,” said Bassios.

Ira Kagan, a lawyer representing developers Elginbay Corporation and Zamani Homes (Richmond Hill) Ltd., said they will be appealing the court’s decision.

“The court case was all about whether or not on a pure legal perspective, the Planning Act allowed the OMB to put a different number in than what Richmond Hill chose,” said Kagan, a municipal lawyer with Kagan Shastri LLP. “We will be arguing that the divisional court’s decision was wrong because (setting the rate) was within the OMB’s mandate or authority.”

Kagan said Richmond Hill’s preferred rate will make it prohibitive to build condos in the municipality, and with the additional cost likely downloaded on to residents, it could make it more difficult to purchase one too.

The town, in conjunction with the community, spent two years developing a parks plan that would guarantee residents ample green space for its residents in light of intensification pressures that have seen a condo boom along Yonge St. and Highway 7.

The plan relied on getting condo developers to pay for green space through a parkland dedication bylaw — a provision of the provincial Planning Act that requires developers and builders to set aside either land or pay cash-in-lieu.

In 2013, the town passed a bylaw that applied the maximum amount permitted in the act: one hectare for every 300 units, or the cash equivalent. As a lesser amount, the town added in the bylaw that developers could pay one hectare for every 730 new residents. Since this summer, the law has changed so it is now one hectare for every 500 units if the municipality takes cash-in-lieu, the preferred option in municipalities with little available land.

Last year in its decision, the OMB sided with a group of developers. It ruled the town’s rate was too high and a “disincentive” to high-density development. Thus, it imposed a cap on how much the town could charge instead: 25 per cent of the land being developed, or its value in cash.

Richmond Hill’s appeal was in opposition to this rate, the decision states.

“The principle of the ratio is that you need to provide parkland proportional to the number of people moving into the neighborhood,” said Bassios. “That amount should change depending on whether it’s a 10-storey, 20-storey or 30-storey building,” she said.

The fight is far from over.

The judges ruled that the matter return to the OMB “for further determination.”

The board will have to wait until the Court of Appeal decides if “the divisional court decision is right or not” before setting a new date, said Kagan.

If the appeal court agrees with the decision, the matter will go back to the OMB. If the divisional court decision is overturned in the Court of Appeal, then the original 2015 OMB decision — which called for the 25 per cent cap —would stand, said Kagan.

A spokeswoman for the OMB says it is “bound by the divisional court decision and will comply with their order.