Proposed implementation of provisions in the Planning Act that provide the Minister enhanced authority to address certain matters as part of a zoning order

The Planning Act gives the Minister of Municipal Affairs and Housing the authority to zone any property in Ontario by issuing a zoning order. Currently, when a zoning order is issued by the Minister, a municipality that uses the site plan control tool in the Act has the authority to address site plan matters for that area. The recently enacted legislative changes to the Planning Act enhance the Minister’s authority for zoning orders across the province. This enhanced authority does not apply to lands within the Greenbelt Area. The enhanced authority allows the Minister to:

• require inclusionary zoning affordable housing (inclusionary zoning),
• remove municipal use of site plan control and require agreements between the municipality and development proponent (or landowner) concerning site plan matters, and;
• make amendments to Minister’s Zoning Orders that use any of these enhanced authorities without first giving public notice.

An enhanced Minister’s Zoning Order could help to overcome potential barriers and development delays. The proposed new authority could be used to support the delivery of transit station infrastructure and the optimization of surplus lands (e.g., affordable housing and long term care homes), provide increased certainty for strategic projects, remove potential approvals delays, increase the availability of affordable housing, provide additional value capture to enable economic recovery.

Amendments to section 47 the Planning Act in force as of July 21, 2020 with the enactment of Bill 197, the COVID-19 Economic Recovery Act, 2020:

Section 47 of the Planning Act now provides the Minister of Municipal Affairs and Housing the authority to zone any property in the province. Prior to the enactment of Bill 197, the COVID-19 Economic Recovery Act, 2020, the Minister’s authority to zone land did not include the authority to address site plan matters, or to require affordable housing units through inclusionary zoning.

Recent changes to section 47 of the Planning Act were set out in Schedule 17 of Bill 197, the COVID Economic Recovery Act, 2020. This bill received Royal Assent on July 21, 2020. These recent amendments to section 47 of the Planning Act give the Minister enhanced powers related to site plan control and inclusionary zoning. However, this enhanced authority would not be available to be used within the Greenbelt Area (i.e., lands in the Niagara Escarpment Plan, Oak Ridges Moraine Conservation Plan, Greenbelt Plan Protected Countryside and Urban River Valleys). Ontario Regulation 59/05, Designation of Greenbelt Area, provides all the specific geographical detail and references the precise legal boundaries of the Greenbelt Area.

These recent legislative changes to section 47 of the Planning Act also provide authority for the Minister to amend an enhanced zoning order without giving notice beforehand.

Inclusionary Zoning

Inclusionary zoning is a land-use planning tool that may be used to require affordable housing units to be built in proposed developments. The recently enacted changes to section 47 of the Planning Act provide the Minister with authority, as part of an order zoning land outside the Greenbelt Area, to use inclusionary zoning to require affordable housing units in proposed developments. These changes would also allow the Minister to require agreements between the landowner and the municipality or the landowner and the Minister to address inclusionary zoning matters and to ensure continued compliance with affordable housing requirements.

Site Plan Control

Site plan is an optional tool under the Planning Act that allows the council of a local municipality to control certain matters on and around a site proposed for development. This control over detailed site-specific matters, such as access (for pedestrians and vehicles), walkways, lighting, waste facilities, landscaping, drainage, and exterior design, ensures that a development proposal is properly planned and designed, fits in with the surrounding uses and minimizes any negative impacts. The recent amendments to section 47 of the Planning Act allow the Minister to address site plan matters in areas covered by a zoning order, where needed. The new authority to address site plan matters could be used in conjunction with a new Minister’s Zoning Order or an amendment to an existing Minister’s Zoning Order.

This authority, if utilized by the Minister, would supersede municipal site plan authority, where the Minister so provides in a zoning order. Through the zoning order the Minister could require a municipality and a development proponent (or landowner) to enter into an agreement dealing with matters related to site plan control (i.e., the same types of matters that may be addressed through typical site plan control). However, the Minister will be able to give binding direction outside the zoning order concerning the agreement to scope the matters that need to be addressed or to specify how the matters are to be addressed.

Implementation of Enhanced Minister’s Zoning Orders

The Ministry is inviting public comment on the use of these enhanced powers regarding site plan control and inclusionary zoning in zoning orders. The Ministry is interested in hearing feedback as to whether the legislative changes made in this regard by Bill 197, the COVID-19 Economic Recovery Act, 2020 should be expanded, repealed or otherwise adjusted. Further the Ministry is interested in feedback as to how this enhanced authority, subject to any potential changes that might be made to it, ought to be used. As noted above, the new authority could be used to support the development of transit-oriented communities, the development of projects of strategic importance, the optimization of surplus lands (e.g., affordable housing, long term care homes and other health care facilities) or other recovery efforts (e.g., economic development and job creation). The Ministry is interested in feedback regarding circumstances where this enhanced authority could be particularly helpful and circumstances where it might be better not used.

The Ministry will meaningfully consider all feedback received and determine whether changes should be made to the provisions of section 47 of the Planning Act enacted by Bill 197, the COVID-19 Economic Recovery Act, 2020 and, assuming the provisions are maintained, at least in part, whether there are best practices that might be articulated to guide the implementation of this enhanced authority.