If you’re an urbanizing municipality, this appeal was worth watching.
With all the teeth-gnashing that seems to come with every decision handed down by the dreaded Ontario Municipal Board, it’s pretty rare that a municipality gets to pop the cork on some champagne and celebrate a victory over them. But that’s what the Town of Richmond Hill just did, and we should all take notice.
The Town took the OMB to court and, after a protracted legal battle, won the right to set the rate at which developers must provide new lands for parks when building high-density developments. While it might seem like local small potatoes, the decision has important implications for Toronto and everyone else in the province.
You can read Torontoist‘s awesome primer to get up to speed on the ins and outs of the OMB. One important note is that because the quasi-judicial OMB is an appeal board, appealing its decisions isn’t easy. Just as the Supreme Court of Canada first grants leave to hear your case before they actually agree to do so, a three-judge Divisional Court panel needs to be convinced you have a legit grievance with questions of law before they’ll even hear the appeal.
So, why has Richmond Hill jumped through all these hoops (supported by Mississauga, Oakville, Vaughan, and Markham, not to mention other municipalities watching from the sidelines)?
Any time a development is approved, the Planning Act allows the municipality to require land be set aside for parks or collect “cash in lieu,” understanding that there may not be the ability or need to build a park right where the proposed development is going. This makes parkland dedication a whole can of worms on its own, but Section 42 of the Act (this is the boring-but-important part) also allows municipalities to use two different methodologies to calculate just how much they ask of developers:
Section 42(1) says that a commercial or industrial development must provide the equivalent of 2 per cent of its land, and for residential development it’s 5 per cent. Pretty straightforward and that’s the most common practice.
But Section 42(3) provides an alternative. If you include the appropriate policies in your official plan, and a parks plan explaining where all this land and/or money is going, “the by-law may require that land be conveyed to the municipality for park or other public recreational purposes at a rate of one hectare for each 300 dwelling units proposed or at such lesser rate as may be specified in the by-law.” If you’re taking cash instead of land, it’s calculated at one hectare per 500 units.
If you just can’t wait to learn more about Section 42, you can read this Spacing primer. Basically, all the density-based math in the alternative method is there to ensure that the populations in increasingly dense neighbourhoods actually have recreational spaces to enjoy.
In Richmond Hill’s case, they created a parks plan and figured out they need roughly 64 hectares of land and $250 million to build the parks they need between now and 2031, and set their rate accordingly.
While some of the GTA’s suburbs continue to sprawl, Richmond Hill is nearly built out. Much of its land is in the Oak Ridges Moraine and they’re trying to build transit-oriented development in their south end so having the flexibility to ensure there’s adequate park space for a rapidly growing population is important. Sound familiar?
(Also worth noting: If there’s any municipality that has a more tortured relationship with the board than Toronto, it’s Richmond Hill. When the Oak Ridges Moraine battles were fought in the early 2000s, the Town hosted so many OMB hearings that a committee room was actually turned into a semi-permanent OMB Hearing Room.)
So you can see how this could affect Toronto, which has spawned many stories of its own about how the population is exploding in the core while recreational spaces are lagging way behind. Remember poor Little Ginny playing in the street? If you want to guess how something as ambitious as Rail Deck Park might get funded, consider Toronto being able to use all the powers it has under Section 42 as part of the mix. The development charges levied on every new project can’t be used for parks, and Section 37 funds, used as sort of a catch-all when developers are given density and height bonuses, are negotiated on a development-by-development basis and are quite complicated. So if you’re an urbanizing municipality, this appeal was worth watching.
Richmond Hill did precisely what the Planning Act says they can do, in black and white, setting their maximum at that 1-hectare-per-300 units. (Toronto also uses the alternative method in designated priority areas but at a relatively meagre 0.4 hectares per 300 units.) Unsurprisingly, a few developers took umbrage with the Town deciding to charge the legal maximum. They went to the OMB and the board agreed it was too high and slapped a cap on the rate as if the Planning Act didn’t clearly state the Town can make that determination itself via a bylaw. The 25 per cent cap the Board imposed was also pretty much pulled out of thin air, with neither the town nor the appellants having suggested it. That’s just how the OMB does things.
There’s somewhat more legal nuance to it but the Divisional Court found that the OMB exceeded its authority, giving itself a power not envisioned in the legislation. The actual rate is established via the bylaw, so the OMB can’t mess with the specifics of the bylaw as part of an official plan appeal. Put another way, the OMB found an end-around, ignoring (or confusing) the difference between establishing policies and making decisions, according to the ruling [PDF] issued by Justice Ian Nordheimer (yes, that Justice Nordheimer).
Developers have argued that the town’s rate is onerous and, indeed, may even counterproductively discourage high density development [PDF] but the decision renders that beside the point: Richmond Hill has the right to set that rate, and live with the consequences.
As for the OMB, this is more ammunition for those who want it abolished outright. How much tax money was spent fighting this over the past four years, just to end up at square one? Too much. The good news is that the province has announced it’s open to reforming the board and municipalities are banding together to make a concerted case for it. Since past reforms have fallen short, we can all cross our fingers this time.
Recent revisions to the Planning Act allow municipalities to establish their own appeals board but Toronto is probably the only city big enough to try. The proposed board, inching ever closer to reality, will have limited powers, dealing with relatively minor issues but, like a kid going away to college, it will be a first step towards the city taking responsibility for its own decisions.
In the meantime, the battles over how we should grow and legal squabbles between municipal councils, developers and the largely unaccountable OMB will rage on. Unsurprisingly, the Richmond Hill case is on its way to the Ontario Court of Appeal. More arguments, more tax dollars spent, but no end yet to the debates about giving the right amount of autonomy to our fast-growing municipalities.