9. Minor variances dÉrogations mineures |
That Council approve that the City
of Ottawa call on the Government of Ontario to adopt criteria for what
constitutes a minor variance and that this motion be circulated to other
municipalities through the Association of Municipalities of Ontario.
Recommandation modifiÉe du Comité
Que le Conseil approuve la décision
voulant que la Ville d’Ottawa demande au gouvernement de l’Ontario d’adopter
des critères permettant de définir ce qui constitue une dérogation mineure et
que la présente motion soit transmise aux autres municipalités par
l’intermédiaire de l’Association des municipalités de l’Ontario.
Documentation
1. City Solicitor report dated 6 October 2008 (ACS2008-CMR-LEG-0019).
2. Extract of Draft Minutes, 14 October
2008.
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
SUBJECT:
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OBJET :
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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.
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.
Minor variances
dÉrogations
mineures
ACS2008-CMR-LEG-0019 City Wide/à l'échelle de la Ville
Councillor Feltmate advised that she presented an inquiry on this matter as a result of an application in her community to double the density through the Committee of Adjustment.
In response to questions from Councillor Feltmate, Grant Lindsay, Manager of Development Approvals Central/West, clarified that Planning staff provide comments to the Committee of Adjustment with respect to Official Plan and other applicable policies. In his experience, requests for minor variances in order to significantly increase density are infrequent. He advised that when proponents come to seek advice from staff, the Planning branch provides an indication of the appropriate route to follow (zoning or Committee of Adjustment). Generally, staff recommends the zoning amendment process for significant increases in density, as it is much more of a public consultative process. In the end, it is the decision of the proponent at the end of the day to determine which process to follow.
Tim Marc, Senior Legal Counsel, concurred that changes to the process could only be sought through the Province. He said that the Ontario Municipal Board and the Court have struggled with what constitutes a minor variance; moreover, the approach of the Court was to describe what it is not (too large or too important to be considered minor). Such language or criteria would not normally be found in a statute but one could suggest criteria to outline a certain threshold.
Christine Enta, Legal Counsel, reiterated that this debate stems from the 1970s. The Court has determined that each case is looked at individually to determine if each element of the four-part test is met. She emphasized that no actual definition has been held up as a standard. The laymen standard of “minor” (small in size and impact) is not necessarily applicable and is not the sole consideration.
Councillor Feltmate introduced her motion, stating that she is seeking to make the process more transparent for residents. Mr. Marc undertook to work with the Councillor to clarify the motion further, prior to consideration by Council.
Councillor Hunter spoke in opposition. He noted that the Committee of Adjustment process provides the City with some flexibility to deal with applications that are truly minor and changes to the Act could result in an onerous process for both applicants and residents.
Councillor Leadman expressed support for the motion touching on issues with the application of the four-part test and community frustration with the process.
Moved by P. Feltmate:
WHEREAS concerns
have been expressed that applications for minor variances are being used for
changes that would more appropriately be addressed through zoning changes; and
WHEREAS the lower
level of scrutiny that applications for minor variances receive means that the
use of minor variances instead of zoning changes means that changes that could
have a significant impact on the community may not receive the attention they
deserve; and
WHEREAS the Planning
Act currently provides no definition of what constitutes “truly minor”;
THEREFORE BE IT
RESOLVED that the City of Ottawa call on the Government of Ontario to adopt
criteria for what constitutes a minor variance; and
BE IT FURTHER RESOLVED that this motion be circulated to other municipalities through the Association of Municipalities of Ontario.
CARRIED with J. Harder and G. Hunter dissenting.
That the
Planning and Environment Committee receive this report for information.
RECEIVED
[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.)