Judge rejects challenge to development plan for Toronto telescope site

An Ontario judge has rebuffed a local nonprofit group that’s fighting plans to develop property near Canada’s largest telescope.

The decision shot down a challenge to the proposed construction of 531 homes on land formerly owned by the University of Toronto, but the group, Richmond Hill Naturalists, says it will continue to oppose the project through the zoning and subdivision approval administrative process.

The site is about 25 miles north of downtown Toronto.

Two things make the land use dispute especially noteworthy — the site itself and the fact that two community activist groups find themselves on opposite sides of the issue.

The university received the property as a gift in the 1920s to house the David Dunlap Observatory astronomical observatory and an arboretum or botanical garden. The observatory opened in 1935 and was the first to visually confirm that black holes exist. The site includes woodlands, wetlands and a 19^th century farmhouse.

In 2007, the university sold the land to Corsica Developments Inc. for a residential subdivision.

Richmond Hill Naturalists sought to have the entire property designated a “protected cultural heritage landscape,” while the developer objected to the town of Richmond Hill’s proposal to designate about half the site for protection. Another local group, David Dunlap Observatory Defenders originally allied with the Naturalists.

The Ontario Municipal Board ordered confidential mediation of the dispute. The board is a quasi-judicial agency that handles land use, development, zoning and subdivision matters.

The developer, the town, York Regional Municipality and the Defenders agreed to participate in mediation, but the Naturalists declined.

Karen Cilevitz, chair of the Defenders, said, “We had been at loggerheads with the town for three years and we were getting nowhere. We had been at the forefront of protecting this property, and I believed it would be crucial for us to attend this mediation. Richmond Hill Naturalists believed the opposite.”

Mediation produced a compromise in which 111 of the site’s 189 acres would be protected, including the observatory, farmhouse and other heritage buildings. As part of the settlement, the town bought 12 acres and the developer pledged to transfer ownership of the rest of the 111 protected acres to the town. In addition, the developer’s original plan for 833 homes was reduced to 531.

The Naturalists wouldn’t agree to the settlement and sued to overturn it.

Marianne Yake, past president of the Naturalists, says the project raises several concerns.

“We would like to see the whole property preserved because of the Don River system. This property is one of the last remaining large open green spaces for that water system,” Yake said.

Other concerns include potential damage to the forestland, risk to the historic buildings and disruption of possible archeological sites pertaining to the Mississaugas and other First Nations peoples. The project also could also impede efforts by some astronomical researchers to continue using the observatory, she said.

But Judge Susan Himel of the Ontario Superior Court of Justice rejected the challenge, saying the case doesn’t warrant judicial involvement.

Provincial law “provides municipalities with the power to designate properties to be of historic or architectural or cultural value or interest in order to protect and preserve the heritage of Ontario. That important purpose must be balanced against the individual property rights of land owners and, with careful planning, both interests can be maintained,” Himel said in the decision.

She also noted that no public agencies or other “stakeholders,” including the Defenders, sided with the Naturalists.

Rory Gillis, a lawyer for the Naturalists, said the group won’t appeal Himel’s decision.

However, Gillis said, the project cannot begin until the developer obtains zoning and subdivision approval, and Yake said the Naturalists will contest the plan at the hearing scheduled to begin June 9.

Meanwhile, the Defenders’ Cilevitz described the compromise as the best possible result under the circumstances. “What we were able to achieve through mediation was a heretofore unheard-of agreement between the town, the landowner and a community advocacy group.

“Would we have wanted absolutely no development? Of course we would. But there comes a time when you have to find middle ground, she said. “This protects more than 60 percent of the land, including the most environmentally sensitive land and significant woodlands.”

A lawyer for the developer said he couldn’t discuss the case.