09/18/2016 16:28 EDT | Updated 09/19/2017 01:12 EDT

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

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."

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."