Developer sues Markham residents over ‘improper’ OMB appeals

Thestar.com
June 13, 2018
Noor Javed

A developer has filed a $10-million lawsuit against two Markham residents claiming that their appeals against a development project are “improper” because they didn’t identify themselves as members of a local ratepayers group when they first spoke out -- yet they used the group’s name when they filed their challenge with the Ontario Municipal Board a month later.

The City of Markham is also named in the multimillion dollar lawsuit, which claims the city was “negligent” and that it “breached its duty of care by forwarding the Ratepayers Inc.’s appeals to the Ontario Municipal Board.”

On Thursday morning lawyers for City Park (Town Crier) Homes Inc., plan to ask the Local Planning Appeal Tribunal (formerly known as the OMB) to dismiss the residents’ appeals at a hearing, claiming the “appeals are invalid.” The appeals were filed to the OMB last year, but will be heard at the new appeal tribunal, which came into effect in the spring.

Emilio Bisceglia, the lawyer for developer Chris Zeppa, the owner of City Park Homes who filed the lawsuit back in April, said neither he nor Zeppa could not comment, as the matter is before the courts. Nor could he say if the lawsuit will be dropped if the appeal tribunal dismisses the residents’ appeals.

A statement of defence has not yet been filed by the residents or the city. The residents have filed an intent to defend.

According to a response from Markham to the motion hearing on Thursday, the city said it received three appeals from the Old Markham Village Ratepayers Inc., in relation to the development in Dec. 2017. In the applications, the appellant was identified as the ratepayers group, and the names of the residents were also included.

The city said in its response that “the city clerk was required by statute to forward these appeals to the Ontario Municipal Board,” according to the rules of the Planning Act, which says that the “clerk shall ensure that appeals received by the municipality are forwarded to the Tribunal.”

“The city clerk does not have the power to determine or assess the validity of an appeal or whether a person has the requisite standing to appeal,” the city said, adding that it is up to the tribunal to make that determination.

According to the lawsuit, in Nov. 2017 residents Ruth Winterfield and Stephen Burgess spoke out at a development services committee meeting to express their opposition to a 11-home development proposed by City Park in the Markham Village Heritage Conservation District, which would require the demolition of a heritage property.

According to minutes from the meeting, Winterfield “spoke in support of preserving the building and in opposition to the proposal in the heritage district.” She was also concerned “about the message that approval of this application would send to others in the heritage district.”

Burgess also spoke, according to the minutes, and “suggested that the new monster homes would not be compatible with the neighbourhood, would not meet the intent of the Heritage District policies, and would set a negative precedent for heritage communities.”

In its claim, City Park alleges that according to the Planning Act, the right of appeal is “only available to a person or public body who, before the plan was adopted, made oral submissions at a public meeting or written submissions to council.”

The claim states that when Winterfield and Burgess spoke, it was “in their personal capacity.”

“At no time did Winterfield and Burgess report, indicate or mention that they were in any way related or had anything to do with the Old Markham Village Ratepayers Inc,” the claim says, adding that it makes their appeal “illegal.”

Weeks later, the Markham council approved City Parks’ development application.

According to the claim, On Dec. 29, 2017 both Winterfield and Burgess filed an appeal to the OMB “with respect to the demolition of the heritage building” and “purported to file the appeal on behalf of Ratepayers Inc., and despite the fact that Winterfield is neither an officer or director of Ratepayers Inc.”

“City Park pleads that there was no right for Ratepayers Inc. to file an appeal in that at no time did they make an oral or written submission before Council made its decision.”

The rules around a resident’s involvement are outlined in the Planning Act, said Becky Fong, a spokeswoman with the Local Planning Appeal Tribunal.

“Residents do not need to be part of a ratepayers group in order to file an appeal,” said Fong, speaking generally about the process. “Residents can file appeals under their own names but if the appeal is being submitted by a ratepayers group, then the appeal letter needs to be filed using that group's proper name.”

City Park alleges that the three appeals put forward by the two residents are “improper” and that due to the defendants’ actions, the developer has had to incur approximately $500,000 in interest and other costs while the appeals are pending, and has been unable to sell the property.

“The individual defendants had a duty of care to City Park to take reasonable care and not file improper and/or illegal appeals,” the claim says.

Local Markham Councillor Karen Rea, who is asking residents to attend the appeal tribunal hearing Thursday, says residents have a right to participate in the democratic process without fear.

“Public participation and the right to dissenting opinion is an important part of our democratic system,” said Rea. “The public should be encouraged to take part in open discussions without fear of intimidation and legal action to silence criticism.”