Municipalities vexed by Ontario zoning orders

Globeandmail.com
November 18, 2020
Shane  Dingman

The increasing use of a once rarely-used, veto-like power-- the Ministerial Zoning Order (MZO)-- to over-rule local planning authority has officials in some Ontario communities feeling bullied and ignored.

“It’s just a slap in the face," said Tom Mrakas, Mayor of Aurora. "It makes you think, why are we as municipalities spending all this time and effort on planning if you’re going to just come in and do as you want?”

Mr. Mrakas has become vocal in his opposition to part of an MZO that rezoned a 10 acres of provincially owned industrial land in Aurora to allow for residential development. The Aurora property was one of three sites the province is attempting to sell through commercial realtor CBRE as a portfolio aimed at creating more than 800 long-term care beds, but Aurora’s is the only parcel that was rezoned to allow residential construction.

“There was no consultation,” said Mr. Mrakas, who said he has requested but not received a call from the minister responsible for the order, Steve Clark, the Minister of Municipal Affairs and Housing. “Our staff gets a call; ‘Oh by the way, an MZO has been issued: six acres will be zoned R9,’-- the highest density in our town," he said. "They’ll put a spin on it; ‘We’re also providing affordable housing.' Thirty-foot lots in Aurora are starting at a million dollars-- that’s not affordable housing. So let’s be honest here and let’s be real.”

Like Mr. Mrakas, there is a growing awareness among Ontario’s municipal leaders that there is no mechanism to appeal a MZO and there is no requirement for the province to consult or to obtain agreement from a lower level of government when imposing them.

More than 30 MZOs have been issued since 2019; in the past the typical rate was one a year. The Federation of North Toronto Residents' Associations combed through Ontario’s Archives and found that between, 1969 and 2000, the MZO was used just 49 times.

“They are a way the province can exert itself for things of provincial interest, traditionally they have been used for economic development,” said David Amborski, director of the Centre for Urban Research and Land Development for Ryerson University, who has been studying the MZOs issued by the present government. Mr. Amborski said the power originates from a time when many Ontario communities lacked official plans, or professional planners. Some examples of MZOs by previous governments include approvals for manufacturing plants in Woodstock, a distribution centre in Bolton and on a number of occasions to allow slot machines at provincial casinos.

Many of these MZOs are not contentious. For instance The City of Toronto has voted twice in the last year to seek an MZO in order to speed up the delivery of pandemic-related projects. Those included two modular housing developments for the homeless and a zoning change to allow outdoor-dining patios at restaurants across the city.

Mr. Amborski said about 12 of the recent orders filed by Mr. Clark were for long-term care facilities, and the province has indicated it will continue to use MZOs in so-called transit-oriented communities, essentially adding more housing density to areas close to public transit stops.

“Projects that would help support our economic recovery from the impacts of COVID-19, including the building of much needed transit and housing-- are often slowed down by burdensome and duplicative red tape,” reads a statement the Ministry provided to The Globe in response to questions about MZO use. “The enhanced authority, while working in partnership with municipalities, will assist with overcoming potential barriers and delays for critical projects that wouldn’t otherwise be resolved.”

Earlier this year Mr. Clark struck a positive tone when describing the orders, telling TVO on July 10: “We’ve worked very collaboratively with municipalities with every MZO I’ve done.” On the same day he used an MZO to over-rule Peel Region on a rezoning application for a new subdivision that had been twice rejected, though in that case the Town of Caledon and its council was in favour of rezoning the so-called Mayfield West site and requested the Minister’s order.

In a move that surprised Toronto City Council and its planning department, the Minister in October issued an order allowing above-guideline heights for several high-rise buildings proposed for three parcels of provincially owned land in downtown Toronto’s West Don Lands.

“What we keep hearing is we need to move faster on these things, and we agree. In the West Don Lands one of the applications was going to council, the work had been done,” said Toronto Deputy Mayor Ana Bailao, referring to one of the three parcel’s which was due to be voted on that very week. “Coming in with a hammer is not the appropriate way … you can’t just bulldozer over city plans,” she said.

The negotiations between local councillors, planners and the development community is often seen as a barter session where density and height are traded for community benefits and support for city infrastructure.

“When you grow population, the city needs to fund infrastructure: everything from pipes and daycare and parks,” Toronto’s chief planner Gregg Lintern said. “All I’m asking is that [the province] collaborate with us. You don’t have to come in the dark of night, you can say openly, ‘We’re considering an MZO here.’ We have to live with the consequences of these developments after the province is gone.”

“It’s so frustrating," Toronto Centre Councillor Kristyn Wong-Tam said. “We’re master planning a community [in the West Don Lands] … it’s critical people have access to basic facilities."

The West Don Lands developer, DKT, a consortium of three companies-- Dream, Kilmer Group, and Tricon Residential-- was selected by the previous Liberal government. They say the site will, among other things, deliver 700 affordable rental units.

“We may still land in the place where we need to,” Ms. Wong-Tam said. "[The] developer has given us verbal and written commitment they will work with us on the site plan.”

In recent weeks Mr. Clark, who was not made available for an interview, has made several comments on Twitter justifying the use of MZOs. He has said, “the status quo wasn’t working,” and claiming some of the credit for 15,000 new housing starts in the province. The ministry has said it reviews each application it receives on a case-by-case basis, but indicated in its statement a broad goal behind the use of MZOs: “These Minister’s Zoning Orders will help speed up the planning process so that municipalities can be ready, once the COVID-19 emergency declaration ends, to move forward on these projects.”

In Aurora, the mayor welcomes the long-term care centre, but said he would not be moved on the residential housing.

“I will look for any and all tools available as a mayor to fight this any which way I can,”Mr. Mrakas said. "If someone buys the property, they will still have to come with a site plan, and I can tell you [as] a matter of fact: Any site plan that comes to our council for that spot will be a big ‘No.’ "