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Minister’s Zoning Orders vs. community engagement

Minister’s Zoning Orders, or MZOs for short, have frequently appeared in the news in Ontario from...

Minister’s Zoning Orders, or MZOs for short, have frequently appeared in the news in Ontario from 2019 to the present day, resulting in many controversies.

Much of the criticism surrounding MZOs revolves around the lack of community engagement.

In the current development context, the approval process can take a very long time with little guarantee of project commencement. The process requires creating various plans and studies, engaging in consultation, completing revisions and obtaining a council decision among other things.

As a result, using MZOs to fast-track development has been gaining more traction.

What is a Minister’s Zoning Order?

First, what is a Minister’s Zoning Order? A MZO is a tool under the Planning Act that grants the Minister of Municipal Affairs the power to govern zoning. With an MZO, a development can bypass local zoning regulations and begin development much earlier.

Municipalities can request an MZO from the minister. Alternatively, the minister can choose to initiate one. Regardless, the decision lies at the minister’s discretion.

MZOs are used for protecting a provincial interest or for overcoming potential barriers in critical projects. When used correctly, MZOs can be a powerful tool to accelerate development. 11 Macey Street and West Don Lands Block 20 are two striking examples of this at very different scales.

11 Macey Street is a supportive housing development featuring 56 studio apartments by CreateTO. After three community engagement sessions, the City of Toronto requested an MZO in July 2020.

The minister granted the MZO in the same month, following which the development opened its doors to residents eight months later, skipping months or even a year of delays. Some of the zoning changes brought about by the MZO are:

– increased maximum height from nine metres to 12 metres;

– increased lot coverage from 33 per cent to 40 per cent;

– reduced front yard setback from six metres to  four metres; and

– increased rear and side yard setbacks.

Currently under construction, the West Don Lands Block 20 demonstrates how an MZO would work on a much larger scale. Block 20 is a mixed-use development on provincially owned lands.

Block 20 consists of two buildings and 661 rental units, of which 196 are affordable. Some of the zoning changes brought about with the MZO are:

– increased maximum height from 15 metres and 24 metres, to 115 metres and 153 metres;

– maximum total gross floor area (GFA) of 82,250 square metres;

– minimum of 40 per cent of dwelling units must be two-or-more-bedroom units; and

– minimum of 10 per cent of dwelling units must be three-or-more-bedroom units.

These two developments are not the only projects made successful with an MZO.

The Ontario Line transit-oriented communities are another example of developments underway due to MZOs. On April 8, 2022, nine MZOs were issued in downtown Toronto for transit-oriented developments.

The five Ontario Line stations affected by the MZOs are Exhibition, King/Bathurst, Queen/Spadina, Corktown and East Harbour.

Some zoning changes brought about by these MZOs include permitting uses, increased maximum GFAs and building heights, reduced setbacks, and additional requirements such as minimum unit mix and bicycle parking provisions.

MZOs are not used exclusively for affordable housing but have been essential for making them work.

Mark Richardson, the technical lead of HousingNowTO, a volunteer organization of local housing advocates, explains, “Almost all of the federal rapid housing sites within Toronto have needed a Minister’s Zoning Order, as have various long-term care builds and hospital expansions.”

Why are MZOs being used more frequently?

One might ask: If the MZO is so great for fast-tracking development, why was it not used more often prior to 2019?

The increased usage of MZOs relates to two different bills that changed how MZOs work: Bill 139 Building Better Communities and Conserving Watersheds Act, 2017, and Bill 197 Covid 19-Economic Recovery Act, 2020.

In 2017, the rules around amending and revoking MZOs changed.

Before Bill 139, a person or public body could request the appeal or revocation of an MZO to the Ontario Municipal Board.

While requests are allowed under Bill 139, they go to the minister instead, who could refer it to the Ontario Land Tribunal, which could conduct a hearing and provide a written recommendation to the minister but not make decisions.

Three years later, Bill 197 granted the minister enhanced zoning powers on any lands outside of the Greenbelt. The enhanced powers relate to site-plan control and inclusionary zoning.

Bill 139 gave MZOs greater certainty, while Bill 197 granted MZOs more flexible powers.

Community engagement: local empowerment gone wild

The MZO is a powerful tool for bypassing local zoning processes. However, what is it about the approval process that makes MZOs such an attractive tool for cutting approval times?

The explanation is complicated, but in short, the approval process can be incredibly slow. So slow that, at times, the approval process takes longer than the actual construction.

In simple terms, the problem is three-fold. The first involves the strict zoning requirements that cause developments to require an amendment process in the first place; the second is the time it takes to receive a decision from council; and the third is the extent of power granted to communities throughout the processes.

Following the demand for local development control in the 1970s, communities were granted power through zoning and Official Plans. As a result, a new development is burdened with strict zoning limits and the requirement that it “fits the character” of the existing context.

Thus, any development that deviates from the prescribed zoning requirements needs to undergo a long amendment process.

As a result, a development would require time and effort to complete various plans, studies and reports, then circulate the application, host community consultations and complete revisions before finally obtaining a council decision.

Even more, power is given to non-professional stakeholders to make professional decisions in this traditional process. This can make community engagement unfruitful and revolve around changes in height rather than important design concepts that would significantly impact the neighbourhood experience.

The traditional approval process requires a lot of time and effort and does not guarantee certainty in project completion. As a result, MZOs will become an attractive tool for cutting down approval times and saving a lot of time and pain.

Seeking balance? Community Infrastructure and Housing Accelerator

The MZO and zoning amendment process are two ends of a spectrum, with the ends being an extreme of no community engagement to an extreme of too strict local control. In an attempt at balance, the Province of Ontario has recently implemented a new tool for accelerating development.

The Community Infrastructure and Housing Accelerator, or CIHA for short, is part of Bill 109, the More Homes for Everyone Act which received Royal Assent on April 14, 2022.

According to the proposed CIHA guidelines, the tool can accelerate the zoning approval process for community infrastructure, any housing type, buildings that would facilitate employment and economic development, and mixed-use development.

The CIHA seemingly addresses the concerns around the lack of transparency and community engagement of MZOs.

Unlike an MZO, a municipality must submit a formal request to the Minister and have a council resolution. Further, municipalities must consult with the public and publish a public notice before the request.

The minister might also impose orders to mitigate potential negative impacts of receiving an exemption.

The CIHA incorporates community engagement while continuing to streamline the approval process for certain developments.

The Ontario Professional Planners Institute and the City of Toronto recognize the new CIHA could speed up approvals for housing and community infrastructure with greater transparency than MZOs, but worry about frequent use.

The Ontario Professional Planners Institute suggests merging MZOs and CIHAs into one while limiting usage to emergencies involving provincial interests. Further, the City of Toronto hopes that MZO and CIHA usage does not become the norm.

Process needs to reconsider community engagement

The CIHA is still a very new tool. Only time will tell how it will balance community engagement and the need for housing and infrastructure.

Regardless, building needed developments and density should not be a scary process and using tools like MZOs or CIHAs should not be the only feasible option.

As long as the approval process stays biased toward community engagement by deviating from a balanced process that frames the scope of discussion and consultation, Toronto will see heavier usage of tools like MZOs and CIHAs in the near future.

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