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

By NOOR JAVED Toronto Star

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.

Ontario court overturns OMB decision, backs Richmond Hill council in dispute with developers

Ruling shows municipalities ‘have a right to plan our communities, thank you very much,’ mayor says

CBC News September 18 2016

An Ontario court has overturned a decision by the Ontario Municipal Board and is backing Richmond Hill’s town council in a dispute with condo developers over the amount of green space needed to accompany new developments.

Council used a standard formula to calculate the amount of money developers would need to pay the city in lieu of creating parkland to accompany their new developments. The developers appealed to the OMB, which imposed a 25 per cent cap on the application of that standard formula — which would have left Richmond Hill $70 million short of what it needed to build enough green space to serve its growing community, according to town staff.

A divisional court has struck that OMB cap down.

“We were thrilled,” Richmond Hill Mayor Dave Barrow told CBC News. “The divisional court realized that the OMB stepped over the line … It did set the tone that we do have a right to plan our communities, thank you very much.”

The developers have announced their intention to appeal.

Cap keeps housing affordable: developers

In addition to arguing that the OMB was within its rights to impose the cap, the developers maintain there is an important rationale for the board’s decision — namely, that it helps developers keep new housing units affordable.

“Because of land values in Richmond Hill (and many areas of the GTA), the only ‘affordable’ new residential units are apartments,” Ira Kagan, a lawyer representing developers in the case, told CBC News by email. “The OMB’s decision understood that, and its modifications were aimed at encouraging intensification and affordable housing.”

A standard formula is used to determine how much new parkland is needed to go along with new developments, or how much money a developer needs to pay a municipality in lieu of that parkland. (CBC)

Barrow says that this case is an example of a broader concern about the OMB, the appeals body set up by the province to resolve municipal planning disputes.

“The general sense is that the Ontario Municipal Board does not seem to listen to the community — whether it’s the residents in the community or the councils of the community — and doesn’t seem to give us the ability to plan our communities.”

‘Respect local planning matters’

He isn’t alone in this view: many municipalities have spoken out against the OMB in the past, including Toronto. Barrow says several of them, including Mississauga and Oakville, supported Richmond Hill’s case, worried the OMB’s cap would affect them as well.

The OMB did not respond to requests for comment from CBC News.

Toronto Coun. Kristyn Wong-Tam thinks the OMB can interfere with a municipality’s autonomy. “I think the final solution for Ontario, in order for us to really respect local planning matters … is that you have to abolish the board or remove the purview of the board from big city municipalities,” she told CBC News.

Along with several other Toronto councillors, she has backed attempts to get rid of the OMB entirely, including a private member’s bill introduced in Queen’s Park in 2014.

Richmond Hill planning commissioner Ana Bassios says the divisional court’s decision “speaks to the limits of the Ontario Municipal Board’s jurisdiction to disregard the community’s planning.”

She says there are two issues at stake: the creation of adequate parkland in this particular case, and the general principle that municipalities should be able to plan their own growth, especially when they do so in accordance with established planning regulations.

“There doesn’t appear to be a pattern to decisions they come to,” Barrow says. “They seem to be all over the map.”