Simcoe, Springwater, Ontario, MRA vs Midhurst landowners

By Kate Harries AWARE News Network

Politics makes strange bedfellows.

In this case, it was the Midhurst Ratepayers Association lined up with the County of Simcoe, the Township of Springwater and the Province of Ontario in a common front before the Ontario Municipal Board to foil the development plans of Midhurst landowners.

On the other side of the county council chambers where the OMB hearing was held last week were lawyers for the five landowners who are trying to wrest a population allocation of more than 6,000 people from the county. This allocation would come from a 20,000 population bonus that was gifted to the county in 2012 by then infrastructure minister Bob Chiarelli.

Its significance: Obtaining the allocation would set the stage for approval of part or all of 456 hectares of greenfield development presently stalled by an appeal by the provincial municipal affairs ministry.

The question before the board: Whether it has jurisdiction to rule on and possibly reverse the population allocation denial made by Simcoe County Council. The MRA, the province, the county and the township say it doesn’t, and any appeal would have to go to judicial review.

The landowners want the OMB to review the county’s allocation decision at a hearing in September.

First, some history: The ministry appealed all of the Midhurst Secondary Plan after it was approved by county council in 2011, but in 2012 withdrew the portion of the appeal that covered a Phase 1,300-hectare portion of greenfields. But that 300 hectares already takes Springwater over its Growth Plan forecast of 24,000 by 2031 and the ministry’s appeal is based on the fact that the forecast does not support further growth. It would seem there’s no hope of getting to Phase 2, which is where lie the profits of the Midhurst project to take the village of 3,500 to 30,000 people.

However!

Dipping into Chiarelli’s 20,000 bonus would solve the problem, hence the landowners’ request to the county for 6,120 people. The county devised an approval process, enshrined it in a bylaw, held a hearing on May 24 2016 and (with the exception of an okay for a 15-person allocation for a large-lot Walton development on the Old Second) denied the landowners’ application.

Shock ensued.

The landowners had expected county council approval, their lawyer Susan Rosenthal told OMB panellist Chris Conti last week.

But in their joint submission to the OMB, the landowners said in effect, “How wrong we were.” The document decries the county’s hearing as “aberrant,” its process as “Kafkaesque,” its decision as “bizarre” and its situation as “functus.”

‘Functus officio’ refers to agencies whose decisions are irrelevant because their mandate has expired. The term is part of a landowner strategy to frame the allocation issue as part of the official plan amendment (OPA 38) that allowed the Midhurst Secondary Plan to go ahead, approved by the county in 2011.

The county’s approval was its final word on the issue, Rosenthal argued, and the logic of that decision required county councillors to accede to the landowners’ request for the allocations that are now needed to address the ministry’s appeal. By refusing the allocations, county councillors are re-opening their decision on OPA 38, the argument goes.

Chiarelli’s Amendment 1 to the Growth Plan for the Greater Golden Horseshoe states that the county “may” approve OPAs that change the designation of non-urban land within settlement areas (like the huge Midhurst settlement area) to urban uses “in excess of what is needed” to accommodate forecast growth.

In other words, the sky’s the limit.

But that didn’t sit well with the new Springwater council elected in 2014, that voted unanimously in January 2016 against supporting the landowners’ request – a vote described in the landowners’ submission to the OMB as “a change of political winds, an inexplicable no.”

As for the May 24 hearing, the landowners charged that county councillors “feigned ‘deliberation’ for no more than approximately 10 minutes; rather than actually deliberate or consider the evidence, the councillors mostly expressed the view that they should defer to (Springwater) Township’s pre-existing objection to population allocations.”

But county lawyers Marshall Green and Roger Beaman, leading the charge against the landowners, denied the central premise of the landowners’ case, that the county reconsidered its decision on OPA 38 at the May 24 hearing.

Rather, they contended, council was exercising newly enacted discretionary powers under Chiarelli’s January 19 2012 Amendment 1, legislation that didn’t even exist when it approved the Midhurst Secondary Plan (OPA 38). The bylaw that set up the hearing process does not fall within the board’s jurisdiction, they argued.

The county’s position was supported by lawyers for the ministry of municipal affairs and housing, who noted that the OMB does not have a general power of review over municipal decisions. Representing the MRA, lawyer Rod Northey pointed to a fallacy in the landowners’ argument that in approving OPA 38 in 2011, the county lost its authority to say anything more.

If that were the case, “we would never have had Amendment 1,” Northey said, noting that the landowners needed Amendment 1 to even have room to apply for the 6,120 allocation. Panellist Conti reserved his decision, which cannot be delayed long – because Chiarelli added a January 19, 2017 sunset clause to the 20,000 allocation. After that, poof! the bonus disappears.