Town wins right to park­land

Supreme Court ends lengthy court bat­tle with ap­peal dis­missal

Thornhill Post - - News - –– Jes­sica Wei

An eight-year-old le­gal bat­tle over a mu­nic­i­pal­ity’s right to con­trol the amount of park­land ded­i­ca­tion for new de­vel­op­ments has come to an end, with a re­cent dis­missal at the Supreme Court of Canada.

On Nov. 15, the Supreme Court of Canada de­clined to hear a law­suit be­tween a hand­ful of de­vel­op­ers and the Town of Rich­mond Hill. This dis­missal put to bed a de­bate about whether or not mu­nic­i­pal­i­ties can claim own­er­ship over their own in­ten­si­fi­ca­tion ob­jec­tives, without pro­vin­cial in­ter­fer­ence.

“I think the dis­missal by the Supreme Court puts an end to this chap­ter of the con­flict be­tween the mu­nic­i­pal­i­ties and the de­vel­op­ers,” said Bar­net Kuss­ner, the le­gal coun­sel for the Town of Rich­mond Hill. “The Town’s po­si­tion is this case got a full air­ing at two lev­els of ap­pel­late court.… All six judges at both lev­els of court were unan­i­mous in their con­clu­sion.”

Since the in­tro­duc­tion of the Rich­mond Hill Of­fi­cial Plan (OP) in 2010, de­vel­op­ers have been in and out of the On­tario court sys­tem to chal­lenge Rich­mond Hill’s rate on des­ig­nated park­land.

The OP is a land use plan­ning doc­u­ment that con­tains poli­cies for hous­ing, in­dus­trial prop­er­ties, in­fra­struc­ture, nat­u­ral ar­eas and more. In­cluded in the OP are guide­lines on how much park­land needs to be built into new de­vel­op­ments. For de­vel­op­ments in ar­eas without land avail­able for a park, the rate in­cludes cash in lieu of park­land. The fig­ure that was out­lined in the OP was pre­scribed by the On­tario Plan­ning Act –– one hectare of land for ev­ery 300 units or the cash equiv­a­lent of one hectare per 500 units.

At the heart of this le­gal bat­tle is the right for mu­nic­i­pal­i­ties to be able to set their own in­ten­si­fi­ca­tion goals. The de­vel­op­ers ar­gued that the role of the OP is to im­ple­ment pro­vin­cial pol­icy. They be­lieved that lim­it­ing the town’s abil­ity to set a park­land strat­egy would help the town meet the province’s den­sity ob­jec­tives.

“Pro­vin­cial pol­icy is very clear that plan­ning de­ci­sions … must en­cour­age in­ten­si­fi­ca­tion and pro­mote more af­ford­able hous­ing,” said Ira Ka­gan, the coun­sel to two of the ap­pel­lant de­vel­op­ers. “The de­ci­sion of the OMB [On­tario Mu­nic­i­pal Board] found that the town’s park­land ded­i­ca­tion pol­icy, without the [OMB’s] 25 per cent cap, failed pro­vin­cial pol­icy.”

Rich­mond Hill’s po­si­tion was that the re­spon­si­bil­ity fell on mu­nic­i­pal­i­ties to pro­vide a bal­anced ap­proach, guided by demo­crat­i­cally elected coun­cil­lors to meet those ob­jec­tives.

“I don’t think there is any com­pelling ev­i­dence at this point that the town is go­ing to fall short of its in­ten­si­fi­ca­tion or af­ford­able hous­ing ob­jec­tives,” said Kuss­ner.

De­vel­op­ers ap­pealed the by­laws set out by the OP to what was then the OMB, which ruled in 2014 to limit the park­land ded­i­ca­tion rate to 25 per cent of the land.

“The ef­fect of the OMB de­ci­sion was you can use that one hectare per 300 rate, but it’s go­ing to be sub­ject to an over­all cap of no more than 25 per cent of the land,” said Kuss­ner.

Rich­mond Hill ap­pealed that OMB rul­ing to the di­vi­sional court on the ba­sis that the OMB had ex­ceeded its au­thor­ity. They were sup­ported by four other cities, in­clud­ing Vaughan and Markham, as in­ter­venors and won the case.

“Our coun­cil at the time … didn’t ac­cept the OMB rul­ing be­cause our un­der­stand­ing is that we have the full au­thor­ity un­der the On­tario Plan­ning Act to set the rates that we have,” said lo­cal coun­cil­lor God­win Chan. “The de­vel­op­ment in­dus­try may not like it, but that does not mean we do not have the au­thor­ity to do so.”

Af­ter the di­vi­sional court and the court of ap­peal sup­ported the town’s staff, de­vel­op­ers then ap­pealed to the Supreme Court. It handed down a de­ci­sion dis­miss­ing the ap­peal on Nov. 15.

“We took the lead­er­ship to stand up for what we be­lieve in … and the courts agree with us, ”said Chan. “This not only im­pacts Rich­mond Hill. Any mu­nic­i­pal­ity in On­tario un­der the On­tario Plan­ning Act has their mu­nic­i­pal­ity af­firmed by the court that we can set our own rates.”

We took the lead­er­ship to stand up for what we be­lieve in, and the courts agree with us.”

Rich­mond Hill coun­cil­lor God­win Chan at Rus­sell Farm Park

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