How Steve Clark is tripling down on his controversial planning powers

ANALYSIS: The minister of municipal affairs and housing is, once again, expanding his personal MZO power to approve developments in Ontario. But there’s a difference this time
By John Michael McGrath - Published on Mar 04, 2021
Minister of Municipal Affairs and Housing Steve Clark makes an announcement at Queen’s Park on December 7, 2020. (Frank Gunn/CP)

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It’s a great time to be a planning nerd, because the current Progressive Conservative government has made the land-use powers of the provincial government a higher-profile issue than it’s been in years —maybe longer. Minister of Municipal Affairs Steve Clark has made much broader use of the power he inherited from the previous Liberal government to issue ministerial zoning orders and has, through changes to Ontario’s Planning Act, expanded the ways in which that power can be used.

On Thursday afternoon, the government is doing it again, with Minister of Infrastructure Laurie Scott presenting a bill proposing new changes to the Planning Act. A brief section of Bill 257, the Supporting Broadband and Infrastructure Expansion Act, would allow the minister of municipal affairs to make MZOs without regard to the provincial policy statement (PPS), one of the key policy documents governing land use in Ontario.

If passed by the legislature, the change to the act would, at a stroke, render one of the few substantial challenges to a Clark-penned MZO moot by retroactively declaring it to have always been allowed under the law. Clark acknowledges that the move is likely to stir up even more controversy on a topic that’s already been very controversial.

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“Any of the seven pieces of legislation I’ve had passed since we became the government in June 2018 have come with comments,” Clark says. “I understand that — I’m realistic. That’s part of the consultation.”

MZOs have become one of the distinct features of the Doug Ford government, though the power was already in provincial law when the Tories won in 2018. When the Liberals under Kathleen Wynne created the Local Planning Appeal Tribunal, in 2017, they exempted ministerial orders from the LPAT appeals; Clark has taken the loaded pistol the Liberals left him and used it far more than the Wynne government ever anticipated. (That’s not speculation; I asked then-minister of municipal affairs Bill Mauro about it when they introduced the legislation.) Some uses of the power have been lightning rods for criticism, but not all: the government has also used MZOs to allow for transitional housing in Toronto, as well as for the successful CaféTO program that assists restaurants during the pandemic.

“I’ll be honest with you — we’ve done a number of MZOs as a government, and we think it’s been a very useful tool,” Clark says. “While an MZO is a great help to our municipal governments, we have to have some certainty moving forward.”

The “certainty” Clark and the Ford government are seeking with this change specifically relates to the Durham region’s Durham Live development, which was approved by the councils of Durham and Pickering (but opposed by Ajax). Durham Live and some associated warehouses would be built in part on Duffins Creek, a natural feature that’s been designated a provincially significant wetland.

Any planning decision, whether by Clark’s ministry or a local council, is currently required to comply with the PPS; the PPS says that development on provincially significant wetlands is forbidden. Because of that, conservationists brought the province to court to try to overturn Clark’s MZO. The changes of Bill 257 would end that protection, rendering the case moot.

It’s a significant departure from past expansions of Clark’s MZO powers: previous uses amounted to a “fast forward” button that allowed councils to skip public consultations (and appeals to the Local Planning Appeal Tribunal, formerly the Ontario Municipal Board). But an MZO didn’t necessarily give councils the ability to simply ignore other relevant laws. This change would mean councils that want to pursue major projects otherwise prohibited by the PPS would now have another path forward.

“The provincial policy statement is a very important document that governs land-use planning, but we also need to ensure in our conversations with municipal partners that there can be other factors that I can consider,” Clark says. “Those priority projects cannot be delayed — there cannot be unnecessary barriers put forward.”

Clark also defended the ecological impact of the Durham Live project, saying that there are opportunities for the developer to remediate an area of the GTA that has suffered from both water pollution and invasive species.

But the changes the government is proposing go far beyond Duffins Creek. The PPS is supposed to guide all aspects of land-use planning in Ontario, and, for more than a decade, one of its goals has been to encourage compact, more efficient developments that require the support of less expensive infrastructure. That’s another policy — like protecting provincially significant wetlands — that municipalities would in theory be able to circumvent. The PPS also protects farmlands and watersheds with different policies.

Clark emphasizes, however, that — except for cases in which the province itself owns the property, such as the Dominion Foundry site in Toronto, which has also led to a court challenge — he’s leaving elected municipal councils in the driver’s seat for requesting MZOs.

“The focus here doesn’t reside in my ministry; it resides in a local council chamber,” Clark says. “It doesn’t give me unfettered access to a planning tool — it gives municipalities the same powers they have today.”

Clark stresses that he still will not approve any MZOs for developments or site alterations in the Greenbelt and that that prohibition is spelled out in the proposed amendment to the Planning Act. He acknowledges that the government could do a better job of communicating how many applications it has rejected in the Greenbelt, not least to the municipalities who still ask Clark to do what he’s repeatedly said he won’t — his office provided copies of nine letters he’s sent rejecting applications on the area of protected land that girdles the GTA.

“I remain steadfast that we will not be entertaining any development request from a municipality on the Greenbelt,” Clark says. “We’ve got to communicate that better.”

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