Comité de l'urbanisme et de l'environnement
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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.
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.
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.
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.
 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.)