Report to/Rapport au :

Planning and Environment Committee

Comité de l'urbanisme et de l'environnement

6 October 2008 / le 6 octobre 2008

Submitted by/Soumis par : M. Rick O'Connor, City Solicitor/Chef du contentieux

Contact Person/Personne ressource : Christine Enta, Legal Counsel/Conseillère juridique

Legal Services/Services juridiques

(613) 580-2424 x13579, christine.enta@ottawa.ca

City-Wide/ À l'échelle de la Ville

Ref N°: ACS2008-CMR-LEG-0019

SUBJECT:	Minor variances
OBJET :	dÉrogations mineures

REPORT RECOMMENDATION

That the Planning and Environment Committee receive this report for information.

RECOMMENDATION DU COMITÉ

Que le Comité de l'urbanisme et de l'environnement prenne connaissance de ce rapport.

BACKGROUND

The following inquiry was presented by Councillor Feltmate at the Planning and Environment Committee meeting of June 24, 2008:

An application for a minor variance that recently went to the Committee of Adjustment would have allowed reduction in the parking requirement of 33% from what is required under existing by-laws and 28% from what is required under the Comprehensive Zoning By-Law. It would also have allowed the density permitted under the current by-law to be doubled. The concern this raises is what guidelines staff are given in deciding whether a proposal should be dealt with as a minor variance rather than a zoning change.

As a result of this inquiry, City staff reviewed the criteria to determine what constitutes a “minor variance” before the Ontario Municipal Board and under current planning legislation.

What is a minor variance?

A minor variance application process is a method for property owners to seek relief or variance through a Committee of Adjustment when circumstances make it difficult to meet the standards established in the zoning by-law.

Are there criteria for determining what is a minor variance?

The Planning Act directs that the Committee of Adjustment must be satisfied that an application for a minor variance on four points — that the variance requested maintains the intent and purpose of the Official Plan and Zoning By-law; that it is considered desirable for the appropriate and orderly development or use of the land; and that the variance(s), in the view of the Committee is truly minor in nature.

When should an applicant apply for a re-zoning rather than a minor variance?

There is no established criteria for determining whether an application is better suited to proceeding as a re-zoning or as a request for minor variance. An applicant may pre-consult with Planning staff on the requirements for each, but ultimately, the decision is left in the hands of the applicant. If they feel that the test for minor variance is satisfied on all four considerations, they can proceed to the Committee of Adjustment.

What if staff disagree?

When an application for a minor variance is submitted, Planning staff are notified and asked to review and provide comments. If they feel that the test under the Planning Act is not satisfied, they may forward that comment to the Committee for consideration. Planning staff are merely a commenting agency at the Committee of Adjustment and do not act in the same capacity as when they appear to give a recommendation at Planning and Environment Committee or Agriculture and Rural Affairs Committee.

DISCUSSION

Our zoning by-laws establish development provisions with respect to the type of development on a specific piece of property and provide direction as to requirements for that development. These are often seen as “minimum” provisions within the zoning by-law respecting, for example, lot coverage or setbacks. We also have “maximum” provisions that may relate to building height or floor space index. A minor variance application is a method for property owners to seek relief or variance through the Committee of Adjustment when circumstances make it difficult to meet the standards recorded in the zoning by-law.

The right to make an application for a minor variance is established by the Planning Act, R.S.O. 1990, c. P.13. The Planning Act also provides that Council may appoint a Committee of Adjustment, but once that Committee is created, Council has no ability to influence decisions of the Committee or to define the parameters of Committee business.

S. 44. (1) Committee of Adjustment — If a municipality has passed a by-law under section 34 or a predecessor of such section, the council of the municipality may by by-law constitute an appoint a committee of adjustment for the municipality composed of such persons, not fewer than three, as the council considers advisable.

Once appointed, the Committee of Adjustment operates as a quasi-judicial tribunal in accordance with the authorization granted to it under the Planning Act. The Act directs the Committee with respect to the scope of its authority; the considerations that it must have when making any decision on an application presented to it; and the administrative provisions it must comply with regarding notice of applications and hearing procedure.

Section 45 of the Planning Act authorizes a Committee of Adjustment to allow minor variances:

S. 45. (1) Powers of Committee — The committee of adjustment, upon the application of the owner of any land, building or structure affected by any by-law that is in effect under section 34 or 38, or a predecessor of such sections, or any person authorized in writing by the owner, may despite any other Act, authorize such minor variance form the provisions of the by-law, in respect of the land, building or structure or the use thereof, as in its opinion is desirable for the appropriate development or use of the land, building or structure, if in the opinion of the committee the general intent and purpose of the by-law and of the official plan, if any, are maintained.

(1.1) Restriction — Subsection (1) does not allow the committee to authorize a minor variance from conditions imposed under subsection 34(16) of this Act.

(2) Other Powers — In addition to its powers under subsection (1), the committee, upon any such application,

(a) where any land, building or structure, on the day the by-law was passed, was lawfully used for a purpose prohibited by the by-law, may permit,

(i) the enlargement or extension of the building or structure, if the use that was made of the building or structure on the day the by-law was passed, or a use permitted under subclause (ii) continued until the date of the application to the committee, but no permission may be given to enlarge or extend the building or structure beyond the limits of the land owned and used in connection therewith on the day the by-law was passed, or

(ii) the use of such land, building or structure for a purpose that, in the opinion of the committee, is similar to the purpose for which is was used on the day the by-law was passed, if the use for a purpose prohibited by the by-law or another use for a purpose previously permitted by the committee continued until the date of the application to the committee; or

(iii) where the uses of land, buildings or structures permitted in the by-law are defined in general terms, may permit the use of any land, building or structure for any purpose that, in the opinion of the committee, conforms with the uses permitted in the by-law.

(3) Power of committee to grant minor variances — A council that has constituted a committee of adjustment may by by-law empower the committee of adjustment to grant minor variances from the provisions of any by-law of the municipality that implements an official plan, or from such by-laws of the municipality as are specified and that implement an official plan, and when a committee of adjustment is so empowered subsection (1) applies with necessary modifications.

The considerations set out in Section 45 of the Planning Act in determining whether to approve or refuse an application for minor variance are known as the four-prong test. This test requires that the Committee satisfy itself as to the following:

1. whether the variance requested maintains the intent and purpose of the Official Plan;

2. whether the variance requested maintains the intent and purpose of the Zoning By-law;

3. that the variance is desirable for the appropriate and orderly development or use of the land; and

4. that the variance, in the view of the Committee, is truly minor in nature.

Extensive case law has been established both through decisions of the Ontario Municipal Board and through the courts on the meaning of the test and how these are to be applied.

HOW MINOR IS MINOR?

The inquiry asked as to when an application should proceed as a minor variance application as opposed to proceeding as an application for a zoning amendment. There is no requirement under the Act that stipulates when a request should be considered as one or the other. The applicant makes the decision with respect to how he or she wishes to proceed. If the applicant chooses to apply for a minor variance, the committee must view the application in light of the above four-prong test.

Part four of the test is a determination of whether the request is “truly minor”. It should be noted that case law has established that the question of “truly minor” is not a mathematical determination, nor does a formulaic calculation exist which can direct committee in a substantial manner. Historically, the concept of minor is flexible and therefore it is understood that an interpretation must be based on the unique circumstances of each application. This was demonstrated in Macaulay v. Toronto (City) (1977), 18 O.R. (2d) 330.

NECESSITY, DESIRABILITY & ADVERSE IMPACT

In determining whether a variance is minor, the Committee will also consider the necessity and desirability of the variance. This was established in Cott v. Toronto (City) Committee of Adjustment (1987), 19 O.M.B.R. 410 (O.M.B.). In this case, the appellant had purchased a home in an area with a maximum lot coverage of 35%. The home already exceeded the maximum at having 46% coverage and the committee denied a request for a minor variance to allow an addition, which would result in a lot coverage of 59.6% — 24.6% over the maximum allowed. The Board dismissed the appeal on the grounds that a zoning by-law for a developed area is intended to protect the existing development from development that may have an adverse effect. Relating it to the four-part test, the Board ultimately found that the requested variance did not maintain the intent and purpose of the zoning by-law.

With respect to the determination of the scope of “minor”, the appellant investigated quite a number of properties in the area with large rear yard additions that had been approved by the Committee of Adjustment, and argued that the precedent had been set to go beyond the 35% coverage requirement. Testimony was presented with respect to the average lot coverage in the area and calculations were put forward to suggest to the Board that the request was similar to the average lot coverage size, and therefore fit into the character of the area. The Board stated as follows:

The Board must look beyond a purely mathematical analysis of the situation and must review each application on its own on its own merit. The Board must look at the relationship of the house to its own lot and how the variance to the by-law, if granted, would impact on the immediate neighbours and the character of the area.

Another case which considers the scope of minor in terms of necessity and desirability of the variance requested, is Re Rossiter, (1993) WL 1452072 (O.M.B.). This case noted that, while the ordinary understanding of “minor” is small or minimal in scope, the Committee’s authority under Section 45 of the Planning Act, gives them “considerable discretionary authority to determine the desirability and appropriateness of a variance”.

Necessity and desirability is often discussed in light of whether a proposed variance, if granted, will have an adverse impact on the surrounding area. Over the last few decades, most Board decisions have seen a melding of the first three parts of the test into the question that is to be asked in part four — if the Committee is satisfied that the first three requirements are met, then that frames the parameters of whether it is truly minor. As a result, the four-part test has become entangled within itself. The four parts became subsumed as the Board seemed to ask itself a single question: what is the adverse impact of granting the variance?[1] In 2005, DeGasperis v. Toronto (City) Committee of Adjustment (2005) 51 O.M.B.R. 1 (O.M.B)., was referred to the Ontario Divisional Court, becoming the authoritative decision respecting the application of the four-part test for minor variances.

DeGasperis provides an in-depth discussion with respect to how the scope of “minor” is determined by size and impact. The Court also engaged in a “disentanglement” of the four parts of the four-prong test. The decision has not been appealed and has been followed on numerous occasions by the Board. This should not be read as a complete denial of the validity of arguing the concept of adverse impact when determining whether a minor variance should be granted. Rather, consideration of adverse impact should be but one factor of the desirability and necessity part of the test and not the deciding factor.

DeGasperis v. Toronto (City) Committee of Adjustment

Homeowners applied to the Committee for four minor variances. The variances sought included setback, height of dwelling and area of dwelling and balconies. The Committee dismissed all of the applications. The homeowners appealed to the Ontario Municipal Board and the Board allowed the variances for height and area relating to the dwelling and balconies but upheld the Committee’s decision with respect to setback.

The Board looked at each requested variance independent of the others and applied the four-part test. The Board decision was referred to Divisional Court on the basis that the Board did not correctly review the four-part test, choosing to focus on the impact of the variances sought with little or no regard to the zoning by-law or official plan.

The Divisional Court re-stated the four-prong test as follows:

An application seeking a minor variance must satisfy a committee of adjustment or the Ontario Municipal Board on appeal that a variance from the zoning by-law is: (i) minor in nature, (ii) is objectively appropriate for the use and development of the land, building or structure, (iii) maintains the general intent of the official plan; and (iv) maintains the general intent of the zoning by-law.

This restatement is significant because it means that the adverse impact approach, which has been consistently applied by the Ontario Municipal Board, is no longer the determinative standard by which the scope of minor should be measured. The Court noted that while impact may be an important factor, it is not the only factor. Moreover, “impact” cannot be the only consideration for what is minor — the size of the variance must also be considered. This is an interesting statement because the Court refers to the ordinary understanding of “minor”. A reasonable person, when asked to define “minor” will relate the term to physical size because something minor is typically perceived to be a “small” change or event. A minor accident, for example, is not cause for alarm as the scope and impact is not considered severe. Note as well, that “impact” figures predominantly in the ordinary interpretation of the term minor — something that is small in scale will correlate to the logical conclusion that it will have a small impact also.

A minor variance is, according to the definition of “minor” given in the Concise Oxford Dictionary, one that is “lesser or comparatively small in size or importance”. This definition is similar to what is given in many other authoritative dictionaries and is also how the word, in may experience, is used in common parlance. It follows that a variance can be more than a minor variance for two reasons, namely, that it is too large to be considered minor or that it is too important to be considered minor. The likely impact of a variance is often considered to be the only factor which determines whether or not it qualifies as minor but, in my view, such an approach incorrectly overlooks the first factor, size. Impact is an important factor but it is not the only factor. A variance can, in certain circumstances, be patently too large to qualify as minor even if it likely will have no impact whatsoever on anyone or anything. This can occur, for example, with respect to the first building on a property in a new development or in a remote area far from any other occupied properties.

(Justice Matlow, DeGasperis, p.7)

With respect to the re-statement of part two of the test, the Court suggests that the test requires variances to be desirable, and not simply compatible, with appropriate development. Whether a variance is desirable is an objective test to be considered from a planning and public interest point of view.

The Court also went on to discuss the oft-raised issues of “need” and “hardship”, both of which have been considered by the Ontario Municipal Board in minor variance decisions. The Court emphasized that neither of these issues form part of the four-part test and should not elevate the granting of a minor variance to the status of a “special privilege” that cannot be conferred without the elements of need or hardship being present.

Despite the foregoing, the Court found that the inclusion of the word “may” in subsection 45(1) conferred on a Committee of Adjustment (and on the Ontario Municipal Board on appeal) a “residual discretion” as to whether or not to grant a variance approval, even if the four parts of the four-prong test have been satisfied.

…I would add that the inclusion of the word “may” in Section 45(1) indicates that the jurisdiction given to a committee of adjustment to grant minor variances is permissive and confers on it a residual discretion as to whether or not grant them even when the four tests are satisfied. In exercising its discretion, a committee is entitled to take into account anything that reasonable bears on whether or not an application should be granted and, in my view, need and hardship are factors that, in appropriate cases, can properly be taken into account. However, even when these factors are taken into account and an application for a minor variance is granted, that does not transform the granting of the minor variance into a special privilege.

(Justice Matlow, DeGasperis, p. 9)

Based on the Divisional Court’s ruling, a committee of adjustment and the Ontario Municipal Board are entitled to take into account additional factors beyond the four-prong test when considering an application for minor variance. Justice Matlow acknowledges that in exercising its residual discretion, a decision-maker may “take into account anything that reasonably bears on whether or not an application should be granted.” Accordingly, it is now acceptable for the Committee of Adjustment to consider “anything” when determining whether or not to grant a minor variance, including hardship or need. The idea of “residual discretion” is a new direction for the Court to guide the Committee (and the Ontario Municipal Board), and it will remain to be seen how it is ultimately interpreted in practice.

Finally, the Court opines that the Board in DeGasperis failed to properly provide reasons for its decision, noting “it is not sufficient for the Board to use template catchwords that refer to the four tests in order to show that it properly considered and applied those tests.” It can be inferred from this statement, as well as the emphasis placed on a careful and detailed analysis of each application throughout the decision, that the Committee of Adjustment will need to adopt the practice of providing reasons for their decisions so that they can be understood and challenged, if necessary. Traditionally, the Committee of Adjustment has not provided the details of their decisions, choosing to simply state that the application does not satisfy the four-prong test without detailing how it failed to meet the standard.

Latest Decisions

Following DeGasperis, it is evident that the Ontario Municipal Board has taken a definitive approach to answering the questions of the four-prong test as independent findings of fact. It has however, still maintained its adherence to the importance of adverse impact in measuring the scope of minor. This approach can be seen in Re Sernick, (2008) WL 2359019 (O.M.B.) whereby the Board states:

The Board finds that the Vahalas presented very little persuasive evidence regarding the proposed additions and whether subsection 45(1) of the Planning Act was satisfied and how the proposed addition adversely impacted on them.

(M.G. Somers, Member, Re Sernick, p. 6)

CONCLUSION

A homeowner has the right to determine whether they proceed with an application for minor variance. There is no ceiling to be met, after which, they have no recourse but to proceed with an application for re-zoning. Certainly, if an application for minor variance is dismissed by the Committee of Adjustment and the decision of Committee is upheld by the Ontario Municipal Board, an applicant may change tactics and file an application for re-zoning at that point, but there is no checklist to direct a person one way or another.

Planning staff may be consulted by any member of the public with respect to a proposed minor variance application, but staff approval is not a requirement of proceeding. Once an application has been submitted for minor variance, the Committee of Adjustment is required to give notice to the public and to various agencies. Among these agencies are various City Departments who will review and comment on applications of interest. The Planning, Transit and Environment Department is one of the departments circulated for comment. Its role is not to facilitate a public review process of the application, nor to engage the community to arrive at a community position on the application. Rather, the role of Planning staff is to review the application on behalf of the City in the context of the issues that the Committee must consider, and in the context of Council-approved planning policies. In effect, Planning staff are a commenting agency and have no role to facilitate the processes and procedures established under the Planning Act that the Committee of Adjustment must comply with.

Once before the Committee of Adjustment, the application must satisfy the four-prong test with respect to minor variances, as established in Section 45 of the Planning Act and in case law. Today, every application must satisfy each part of the test: (i) minor in nature, (ii) appropriate for the use and development of the land, building or structure, (iii) adheres to the intent of the official plan; and (iv) adheres to the intent of the zoning by-law. As to individual analysis of each of the four parts, while guidance has been provided through case law, it is remains clear that the interpretation of what is minor cannot be boiled down to a checklist and must be evaluated on the unique circumstances surrounding the requested variance.

FINANCIAL IMPLICATIONS

N/A

CONSULTATION

No consultation was undertaken in the preparation of this information report.

DISPOSITION

This report was prepared for information purposes. Staff will action any direction from Committee.

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[1] Goodwood Club v. Uxbridge (Twp) (1990), 24 O.M.B.R. 199 (O.M.B.); Darling v. Brockville (City) Committee of Adjustment (1994), 31 O.M.B.R. 285 (O.M.B.); Quesnelle v. Brookfield Homes (Ontario) Ltd. (2003), 46 O.M.B.R. 417, 2003 CarswellOnt 6136 (O.M.B.)