Minister’s zoning orders come to the fore in a pandemic

Introduction

Section 47 of the Planning Act¹ allows the Minister of Municipal Affairs and Housing (Minister) to make “Minister’s Zoning Orders” (MZOs), to govern land uses within areas subject to the order. An MZO prevails over any other zoning by-law in effect in the area, giving the Minister complete authority to regulate land use on specific lands. Despite being a rarely or judiciously used power for decades, the making of MZOs is a frequent occurrence in 2020. This order is a necessary tool for emergency response and economic recovery or an unprecedented circumvention of local planning processes, depending on who is assessing the situation.

The Planning Act has long afforded the Minister significant discretionary authority to directly zone land; however, the use of this extraordinary power was often limited to areas without municipal organization, cases of emergency or where there was a pressing provincial objective at stake.

Typically, a person or municipality seeking to change a zoning by-law must adhere to the process set out in section 34 of the Planning Act and O. Reg. 545/06. This process provides for notice of the proposed amendment, public consultation and, generally, a right of appeal to the Local Planning Appeal Tribunal (the Tribunal).

In the case of an MZO, the Minister does not need to give notice or hold a hearing before issuing an order. The Minister must give notice within 30 days of the decision in the manner the Minster deems appropriate. MZOs are enacted as regulations under the Planning Act and thus published in the Ontario Gazette. Notice of the decision must be lodged in the office of the clerk of the municipality(ies) in which the lands are situated, or the land registry office in territories without municipal organization.

Recent legislative history – the MZO gets stronger

In April 2017, the former Liberal Government introduced and passed Bill 139, the Building Better Communities and Conserving Watersheds Act, 2017,² making sweeping changes to the land-use planning regime in Ontario. Among the many changes, including to the Planning Act in particular, Bill 139 introduced significant changes to section 47 of the Planning Act.

Previously, where an application was made to the Minister to amend or revoke an MZO, a person or public body could request that the application be referred to the former Ontario Municipal Board (OMB). In such a case, the Minister was required to refer the application to the OMB to hold a hearing, and the OMB had the authority to amend or revoke the MZO, or refuse to do so. The Minister had some authority to refuse a referral request, akin to the statutory bases for dismissing an appeal without hearing, such as there being no apparent land use planning grounds for the request, or the request being deemed frivolous, vexatious or for delay.

After the Bill 139 amendments, a person or public body had no right to request the referral, while the Minister maintained their discretionary power to do so.

The Bill 139 amendments also changed the powers of the Tribunal, where the Minister referred the application to amend or revoke. Previously, the Tribunal was empowered to make a “decision” on the matter (subject to Cabinet’s ability to confirm, vary or rescind the decision where the Minister had notified the OMB of a provincial interest³). Following Bill 139, the Tribunal could provide a “written recommendation” to the Minister, supported by reasons but the ultimate decision rested with the Minister.

When making changes to the Planning Act in Bill 108, the More Homes, More Choice Act, 2019,⁴ the current Conservative government did not make any amendments to the MZO power. However, the government did propose a new planning instrument in December 2018– the Open-for-Business Planning By-law – when it introduced Bill 66, Restoring Ontario’s Competitiveness Act, 2019, for first reading in the legislature.

Although Bill 66 was ultimately amended by the Standing Committee on General Government to remove this power, there are parallels between this proposed local planning tool and MZOs that foreshadow the Minister’s recent willingness to use MZOs more frequently than in the past (especially in cases where local municipalities make a request to the Minister to exercise this power).

One key distinction is that the Open-for-Business Planning By-law would have been exempt from a number of Acts, including section 3(5) of the Planning Act, the Greenbelt Act, 2005, the Places to Grow Act, 2005, and the Clean Water Act, 2006. Unlike the Open-for-Business Planning By-law, a decision to make an MZO must be consistent with the Provincial Policy Statement, and have regard to matters of provincial interest;⁵ obligations to conform to certain provincial plans, such as the Greenbelt Plan, vary.⁶ Notably, an MZO does not have to conform to a growth plan issued pursuant to the Places to Grow Act, 2005,⁷ or the Oak Ridges Moraine Conservation Plan⁸ and relevant official plan policies.

Bill 197 and the “Enhanced MZO”

In addition to MZOs governing zoning, section 47 has previously (and continues to) allow MZOs respecting interim control by-laws, temporary use provisions, and minor variances.

As of July 21, 2020, and pursuant to Bill 197, the COVID-19 Economic Recovery Act, 2020,⁹ the Minister can now make what are becoming known as “Enhanced MZOs”¹⁰ relating to any “specified land” to,

• Provide that traditional site plan control in respect of all or part of the specified land does not apply;
• Require a form of site plan agreement between the landowner and the municipality, and impose directions in respect of the agreement, including specified matters that shall not be dealt with in the agreement, or how certain matters shall be addressed; and/or
• Exercise inclusionary zoning (affordable housing) powers, which could direct that a specified building or development of specified lands include a prescribed number of affordable housing units, the term for which such units shall be affordable, and a host of other powers under subsection 35.2(2). This power resides in the Minister regardless of whether the host municipality has an official plan with policies addressing inclusionary zoning.

All of the above powers were previously limited to municipalities, and were beyond the scope of the pre-Bill 197 MZO regime and the Minister’s powers.

“Specified land” refers to any land in Ontario outside of the Greenbelt Area, including those parts covered by the Oak Ridges Moraine Conservation Plan area, Niagara Escarpment Plan area, and Greenbelt Act regulations.

Significant increase in MZOs Province-wide and in developed municipalities

Traditionally, the MZO power was used sparingly and perhaps less frequently in more urbanized areas with mature planning regimes. With Bill 197’s expansion of the utility of MZOs, they are now being made most frequently for lands in municipalities that have well-established planning policies and protocols approved locally pursuant to the Planning Act, especially across southern Ontario.

The following table lists all MZOs made in 2020 as of the date of writing. As of mid-November 2020, 31 MZOs have been issued, compared to 0 in 2017 and 2018, and just over 70 cumulatively since 1990. Another source, a submission to the Minister authored by the Federation of North Toronto Residents’ Associations, reports that from 1969 to 2000, there were 49 MZOs issued.¹¹

The subject matter of MZOs is evolving rapidly, even over the course of this year. Historically, MZOs were used in special circumstances to address a matter of heightened significance to the Province or to impose controls where local planning instruments did not exist or were insufficient, particularly in areas lacking municipal organization. During 2020, the earliest MZOs dealt with a variety of residential and non-residential matters. As the summer progressed and the Provincial government began responding to the extraordinary impact of COVID-19 on long-term care and retirement homes, many of the MZOs facilitated development of new facilities. More recently, we have seen a variety of priorities manifested in the MZOs, from supply logistics to provision of housing to general economic stimulation through significant levels of construction activity.

While some of the 2020 MZOs have been in response to municipal requests and in relation to current emergency response priorities, such as long-term care homes, others may be said to facilitate traditional residential, mixed-use or non-residential development. According to media reports, some of these MZOs were issued without full local municipal support. Given the breadth of purpose now apparent in the steady stream of MZOs being issued, lack of local support will make the use of the power far more contentious.

Minister’s Zoning Orders – 2020

Listed from earliest in 2020 to most recent
Last Updated: Nov. 18, 2020

The authors thank student planner Edmund Un for preparing the Minister’s Zoning Orders – 2020 table.

¹ R.S.O. 1990, c.P13, as amended.

² S.O. 2017, c. 23.

³ Ontario (Ministry of Natural Resources), Re, 2012 CarswellOnt 18208, at para. 3 (OMB).

⁴ S.O. 2019, c. 9.

⁵ Seipt, Re, 2015 CarswellOnt 5336.

⁶ See section 16 of the Greenbelt Act, 2005, S.O. 2005, c.1.

⁷ S.O. 2005, c. 13, subsection 14(3).

⁸ Oak Ridges Moraine Conservation Act, 2001, S.O. 2001, c. 31, s. 14.

⁹ S.O. 2020, c. 18, s. 3 (which came into force on the date of Royal Assent: July 21, 2020).

¹⁰ Enhanced MZO power found at Planning Act, subss. 47(4.1 – 4.16).

¹¹ See: Letter from Federation of North Toronto Residents’ Associations, (16 October 2020), “Minister’s Zoning Orders”, available online.