Province’s special orders fast-tracking development swamp Toronto area conservation authorities

Thestar.com
July 5, 2021
Noor Javed

More than half of the 45 special orders issued by the province to fast-track development in the past three years have fallen within the jurisdiction of the Toronto conservation authority.

That’s left the province’s largest conservation authority scrambling to provide crucial environmental information to municipalities and the province ahead of these unappealable planning decisions.

Despite the “potentially thousands” of hours spent on development files associated with minister’s zoning orders, or MZOs, the Toronto Regional Conservation Authority (TRCA) says there is also no simple way to recoup costs from developers for all the extra work required before a permit is issued.

Of the 45 special orders issued by the province, 27 are within the jurisdiction of the TRCA, which includes Toronto, and parts of York, Peel and Durham. Of those, 16 are within the TRCA’s regulated areas, meaning it is located “in or near a watercourse, river or stream valley, wetland, shoreline or flood plain.”

The TRCA is tracking an additional nine MZOs that have been privately requested and are still under consideration by the province.

“When we become aware of these, we have to act very quickly because there is very little, if any, notice provided before MZOs come forward or even endorsed by municipal councils,” said John MacKenzie, the CEO of the TRCA, adding staff are often asked to give the MZO precedence.

“A lot of these MZOs are being discussed without the typical, and required, prerequisite (environmental impact) studies that we would typically have the benefit of, in order to provide more nuanced, detailed and sophisticated advice,” he said.

MZOs allow the province to fast-track developments by overriding local zoning rules. Last year, the province introduced legislation that forced conservation authorities to issue permits for developments approved through MZOs -- even if they are situated on environmentally sensitive lands.

“This needs to be a cost-recovery item, and at the moment it isn’t,” said Robert Baldwin, CEO of the Lake Simcoe and Region Conservation Authority (LSRCA), which is dealing with around 20 MZOs.

Baldwin said the hearing and agreement requirement for each MZO application is time consuming and costly.

Baldwin said the LSRCA has issued a permit for one MZO where they were only able to charge $3,500, but it likely cost the authority upwards of $25,000.

“It’s not only about that cost,” he said. “It’s also the loss of time staff aren’t doing their other work.”

Last year, the province introduced sweeping legislation curtailing the ability of conservation authorities to oppose development on environmentally sensitive lands, and changes around governance and mandates.

The MZO for the Duffins Creek wetland in Pickering became an “all hands on deck corporate priority” for the TRCA, requiring “thousands of hours” of work, said MacKenzie. But when it came time for the TRCA to recoup costs for their work through an agreement, that didn’t happen.

“If there is a MZO situation that doesn’t end up where there is a permit, or an agreement ... how do you recover all that? You can’t.”

In this case, even though a hearing took place and the permit was issued, the city and developer asked for a pause on the MZO after plans with Amazon -- the potential client -- fell through.

“As a result there was no agreement issued, which may have been a vehicle for some cost recovery. But it didn’t transpire,” said MacKenzie.

The province says MZOs are just a small part of the work conservation authorities do.

“Across Ontario, conservation authorities issue thousands of permits each year as compared to the much smaller number of MZOs issued in Ontario where a conservation authority permit is required,” said Jolanta Kowalski, on behalf of the ministries of environment and natural resources.

She said that conservation authorities have experience with calculating fees for permits, which can include compensation costs for specific environmental studies.

MacKenzie said the province should do more to ensure developers provide the minimum environmental studies before a MZO is issued.

He said even developments that are not on environmentally sensitive areas can be riddled with concerns. For example, one MZO that was approved by Vaughan last fall for a condo project near Highway 7 and Bowes Road, is in an area that can flood easily.

He said normally flood and engineering studies would have been done prior to any planning approval. But in this case, the province issued the MZO without them.

“The government can as a requirement on a MZO make sure that those proper studies are done,” said MacKenzie. “Our ask is to make sure that ... all the ministries ... take into account our science-based recommendations.

MacKenzie added they are doing this ti protect the public. “We want to make sure the public safety issues and those erosion impacts downstream are at least considered and impacts are mitigated,” he added.

Kowalski says conservation authorities can “request information and studies as needed to support their review of the potential impacts of a proposed development on public safety and natural hazards like flooding and erosion, and before a conservation authority permit application from a proponent is deemed complete.”

But MacKenzie said that once developers get a MZO, even if a municipality requests environmental studies as a condition for a building permit, “there is not as much motivation to do the studies once they have gotten their approvals ... or do it to our standards.”

A Toronto Star investigation last month on MZOs found that the province’s prolific use of the zoning tool has upturned decades-old planning system that had specific processes, protections and transparency built into it, and created a system that appears to be less about procedure but more about who you know.