The provincial transit agency is taking the rare step of initiating legal proceedings against the city, over a council vote that would allow townhomes to be built next to a south Etobicoke rail yard.

In a dispute that has implications for the mayor’s signature SmartTrack project, the Star has learned that Metrolinx delivered a notice of appeal to the city clerk Tuesday. It alerted the city that the agency is challenging council’s June 9 decision on the Mimico-Judson lands to the Ontario Municipal Board.

The notice asserts that council’s decision to redesignate a strip of land north of GO Transit’s Willowbrook rail yard as “mixed use” was made contrary to provincial and city planning policies, occurred without any public consultation, and “does not represent good land use planning.”

In voting 21 to 15 for the redesignation, a majority of councillors ignored the advice of city staff who had recommended retaining the property north of the rail yard as employment lands, which permit industrial, commercial and institutional use.

Metrolinx officials had also warned that allowing homes next to Willowbrook would limit the agency’s ability to expand activity at the rail yard to accommodate its regional express rail (RER) project.

Although Mayor John Tory’s SmartTrack plan is a part of RER, Tory voted in favour of the mixed-use designation.

Asked about the OMB appeal Friday, the mayor’s spokeswoman said in a written statement that “SmartTrack is moving forward, thanks in part to our strong working relationship with Metrolinx and the provincial government . . . These appeals are not unusual, and we will continue to work with Metrolinx as the OMB process unfolds.”

Councillor Gord Perks said that the mayor and his allies “made a terrible, terrible mistake. And now we’re going to have to waste public money fighting each other about it.”

Because city staff are already on record as opposing council’s decision, the city would have to hire outside planners to support its case at the OMB, which would increase legal costs, Perks said. He added that it’s possible Metrolinx could subpoena the city’s own planners to make the agency’s case.

“This is one of the dumbest planning decisions I’ve seen in my career,” he said.

In a Marchreport to the planning and growth management committee,staff said keeping the Judson lands’ employment designation was important to “protect and support existing operations and future expansion opportunities” at the rail yard.

But at a May meeting of the planning committee, Etobicoke-Lakeshore Councillor Justin Di Ciano moved a motion — which was approved the next month by council — to designate the lands for mixed use.

As first reported by CBC, a company named Dunpar Developments has applied to build 72 townhomes and lowrise commercial buildings at the site, which is not in Di Ciano’s ward.

Metrolinx’s notice of appeal charges that “no public consultation had taken place prior to this change” at committee, and because Di Ciano moved his motion from the floor it didn’t appear on a public agenda beforehand.

Di Ciano has ties to the developer through his twin brother, Julien Di Ciano, who lists Dunpar as a former employer.

In response to the questions about his motion and the OMB appeal, Councillor Di Ciano said Friday these are complex planning issues and he didn’t have time to adequately reply by the Star’s deadline. He previously told council that he has sought “expert legal advice” on this issue and that advice was “crystal clear” that he was not in a conflict of interest.

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Councillor Mark Grimes, who is the local councillor for the area, told the Star that his constituents are bothered by a concrete plant that currently occupies the employment lands near the rail yard, and redesignating the area would allow for more suitable redevelopment.

“The community wants them out of there, this is light at the end of the tunnel. In my mind this is how we’re going to get them out of there,” he said.

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