Section 34 of Ontario's Planning Act was amended
two years ago to grant specific authority to local municipalities
to pass zoning by-laws with conditions. The City of Toronto Act,
2006, which had been enacted shortly prior to the Planning
Act amendments, contains a separate conditional zoning
authority for the City of Toronto in s. 113.
Generally, this is the first time in Ontario that municipalities
have been permitted to impose conditions upon a specific owner of
land when passing a general zoning by-law. Notwithstanding this
fact, this did not preclude some municipalities in the past from
imposing conditions that landowners provide something in exchange
for the passage of an amendment to a zoning by-law. Such
arrangements were not, however, legislatively permitted and thus
there remains some question as to the validity and enforceability
of such agreements.
The authority to enact a zoning by-law with conditions expressly
permits "prescribed conditions" to be contractually
imposed on an owner pursuant to an agreement. The agreement can
then be registered against title to the lands to be enforceable
against both current and future owners of the lands. The provisions
in both the Planning Act and the City of Toronto Act, 2006
contain an express statutory exception to the common law rule that
positive covenants do not run with the land and cannot bind
successors in title (this allows the agreements to be enforced
similar to other development agreements currently authorized under
the Planning Act).
The conditional zoning authority, unlike a holding by-law
enacted under s. 36 of the Planning Act, creates a zoning
bylaw that is in full force and effect as of the date it is passed,
subject to a requirement that certain conditions be fulfilled after
Both developers/landowners and municipalities like the concept
of conditional zoning, albeit for different reasons. Landowners
appreciate the opportunity to obtain valid zoning amendments prior
to the date that such amendments would have been effective if
certain requirements were to be satisfied prior to enactment.
Municipalities see the benefit of obtaining legal enforceable
concessions from a landowner as a condition of seeking zoning
The authority to use the new conditional zoning authority under
the Planning Act and the City of Toronto Act,
2006 is contingent upon a regulation being made that sets out
"prescribed conditions." A draft regulation for the
Planning Act was originally posted on the Environmental Bill of
Rights Registry over three years ago which indicated that the
intent of the Ministry of Municipal Affairs and Housing was to
permit only a scoped form of conditional zoning. However, to date,
no decision has been made regarding the prescribed conditions that
may be imposed under either statute.
While the conditional zoning provisions in the City of
Toronto Act, 2006 are worded in much the same way as the
corresponding provisions in the Planning Act, the fact
that there are separate statutory authorities indicates that the
Province is likely to permit prescribed conditions to be imposed in
the City of Toronto that are different than other
The fact that only prescribed conditions may be imposed is a
limitation on the scope of the conditions that municipalities may
require on zoning. A review of the draft regulation reveals that
the proposed permissible conditions are very much tied to the
underlying goal of the Planning Act to achieve sustainable
development through the development approval process. What is even
less clear is how the draft prescribed conditions relate to
matters, services, facilities and things that may already be
extracted from landowners and secured through various other
authorities contained in the Planning Act.
The authority to permit conditional zoning is intended to allow
a more flexible zoning process similar to the development permit
authority. Landowners and developers will likely embrace this
authority if the "prescribed conditions" are limited and
do not permit municipalities to extract additional concessions.
Municipalities and the City of Toronto, on the other hand, will
likely utilize the authority to further their social, fiscal and
environmental priorities in an attempt to implement sustainable
development. John Mascarin is a partner and a member of the
Municipal & Land Use Planning Group at Aird & Berlis LLP.
He is a certified specialist in Municipal Law: Local Government and
Land Use Planning & Development.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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