Real Estate Law: Minor Variances with Major Impacts

Minor Variances with Major Impacts

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What are Minor Variances?

What are minor variances? Before renovating, building or developing on a property, it is important to research the municipal zoning by-laws. Municipal zoning by-laws govern the types of uses permitted on a property and specify building locations and parking spaces, amongst other things, to ensure that land is being developed in a safe and orderly manner.

Minor variance applications seek permission to excuse a landowner from one or more of the rules set out in the by-law. A minor variance application might be required in order to obtain a building permit, sell a property or to seek relief where a property does not meet the standards imposed by a zoning by-law. Minor variances are not “minor” at all and can greatly alter the developability of land.

The Process

To apply for a minor variance, an application can be submitted to the Committee of Adjustments of the municipality. The Committee of Adjustments is a committee made up of citizens, appointed by city council. Once an application has been submitted to the Committee, property owners within a certain radius of the property will be notified and a public hearing before the Committee will be scheduled. At the hearing, the Committee will hear evidence from the applicant and experts such as land use planners. The Committee will also allow other individuals who attend the meeting to present their views.

Once the Committee makes a decision, or if it fails to make a decision, it can be appealed to the Ontario Municipal Board. The appeal must be submitted within 20 days of the date the decision is made, if there is a decision.

The Legal Test

S 45(1) of the Planning Act (the “Act”) gives the Committee of Adjustments and the Ontario Municipal Board the authority to grant or deny minor variances, commonly referred to as the “four tests” for approval.

The variance must meet the following tests:

  1. Maintain the general intent and purpose of the official plan;
  2. Maintain the general intent and purpose of the zoning by-law;
  3. Be desirable for the appropriate development or use of the land, building or structure; and
  4. Be minor in nature.

In the case Vincent v DeGasperis, the Divisional Court of Ontario shed light on the four part minor variance test.

The Court emphasized that the definition of something “minor” is something that is “lesser or comparatively small in size or importance” such that a variance could be more than minor because it is too large, or too important. The Court stated that a minor variance could be too large even if it will likely have no other impacts.

The Court further noted that each variance should be considered not from a private perspective, but from a land use planning and public interest point of view. This is accomplished by analyzing the general intent and purpose of the official plan and zoning by-law at issue.

Finally, the Court in DeGasperis introduced need and hardship into the s 45 test, stating that the Committee and OMB can consider whether the applicant seeking the variance “needs” the relief or will “suffer hardships” if the variance is not granted, and factor this into its decision.

Minor Variances – The Potential Impact

Despite the Court’s clarification in DeGasperis, a wide variety of projects are being brought before the Committee of Adjustments to seek minor variances, some of which are not “minor” at all. A minor variance application may be put forth for something simple, such as building a deck or changing a driveway. However, variance applications can also have larger impacts when they involve large scale development projects, such as a condominium development. Large scale development projects can often depend on the granting of one, or more commonly, several minor variances.

If a minor variance is not granted, often the only alternative available is to submit a re-zoning application. Since the minor variance application process is significantly faster and simpler than the alternative re-zoning application, minor variances can save developers and builders a lot of time and money.

Neighbouring properties may be positively or adversely impacted by the variance and development project. Neighbouring property owners may challenge a minor variance application for a large scale project if they feel it will impact their view, the amount of sunlight their property is exposed to or the overall character or aesthetics of the neighbourhood, amongst other reasons.

Please contact Michael Paiva for more information about minor variances, or if you require assistance with a possible minor variance application or appeal.