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Background
One of the issues in our neighbourhoods is the considerable number of applications for minor variances to our zoning by-laws. CMGRA has prepared the following document to provide some information on the minor variance process. The CMGRA encourages you to pay attention to the orange signs that appear from time to time in our neighbourhoods. Read the Notices that you receive in the mail and if you think the variance will impact your property or neighbourhood go to Town Hall and have a look at the file. The planners in the Planning Department are very helpful and will do their best to help you understand the impact of the variances. Information including the COA agenda and staff comments is now available on the Town’s website. http://www.oakville.ca/coa-agendas.htm
For our part the CMGRA will continue to:
1. Encourage Council to make it clear to Town staff that they should not support any variances on new construction (as opposed to the renovation of existing homes) except in the most extraordinary of circumstances.
2. Encourage Council to require the COA to give written reasons for its decisions on minor variance applications.
3. Be available to our members to assist you with the process and if necessary put you in touch with the planning staff and others at Town hall that are available to you.
4. Attend and participate in COA meetings as a community representative from time to time, as the situation warrants.
Introduction
The old expression that “all politics is local” applies to any discussion of minor variances where the full might of the devolution of authority we have created for ourselves in Ontario comes crashing into our driveways, balconies and side yard flower beds. As it is municipal governments that affect our daily lives most directly it is curious that constitutionally they do not have as much power as sometimes we might like them to have. Municipal governments are what lawyers call “creatures of the province” meaning they can’t really do much that the province has not permitted them to do. This is why their laws are called “by” laws. They can only pass laws that they have been allowed to pass “by” the province.
All of our zoning rules governing things like how high we can build our houses (height); how much of our land we can cover with a house (coverage); how much house (floor area) we can have on a lot (density); how close we can build to the street (front yard setback); and to our neighbours (rear and side yard setbacks) are in the Town’s Zoning By-Laws as they get amended from time to time. If an owner, whether or not he/she is the resident, wants to put anything on their property that does not meet the requirements of the zoning by-law they need to ask for a “variance” to the zoning by-law. From this comes something known as the Minor Variance process. In this process owners ask for a relaxation of the rules to permit a particular aspect of their development. In some smaller communities and in simpler times the Town Council could, and did, hear the requests directly. After all it is Council’s zoning rules the owner is trying to vary. With the volume of applications however it has today become common for municipal councils to appoint a committee to hear the applications. Accordingly we have a Committee of Adjustment (“COA”), appointed by Council, and authorized to grant minor variances to Council’s zoning rules.
The Committee of Adjustment
The COA. At present in Oakville our Committee of Adjustment has five members, one of whom is the Chair. The members are appointed by Council. They typically meet once a month in the evening in the Council chamber at Town Hall to hear about ten minor variance applications from owners/developers of both commercial and residential properties. There is a process that must be followed prior to minor variance applications getting to be heard by the COA. The owner/developer applying for the variance (normally referred to as the “Applicant”) makes an application to the staff of the COA. The process includes things like requirements for the material that needs to be filed and the notice that needs to be given. The application is circulated to various Town and Regional officials to see whether any of them – including for example the conservation authority; the fire department; the building department; the traffic people; the tree people, etc. have any comments or objections to the by-laws being relaxed to allow the applicant’s proposal.
Notice of Meetings. There is a requirement that interested members of the public be notified. This is why you will see bright orange signs posted on the property that advise of the variance application and invite people to inquire at Town Hall should they require more information. Letters are also mailed to the owners of any properties within a certain radius of the Applicant’s property. These letters also invite interested parties to learn more by checking out the file at Town Hall. Another way that you may become aware of an application is that Applicants are often advised to collect signatures of support for their proposal. Typically they do this by way of a door to door canvass. Lack of objection from the neighbours is thought to be helpful at the hearing although it is the opinions of the abutting owners, or those most potentially impacted, that are thought to be given the most weight. A structure being higher than allowed may matter a little to someone down the street but a lot to the abutting owner whose property is suddenly shaded. Information including the agenda and staff comments is now available on the Town’s website. http://www.oakville.ca/coa-agendas.htm
How/When to Object/Oppose. Neighbours or other interested parties are able to attend and speak in either support or opposition at the COA meetings. Often however if you want input into the process it is better to speak to Town Staff as their approval process is underway. The COA is usually disposed toward favouring an application if no objections have been raised by any of the Town’s planners or other departments. In any event those who wish to speak are only given 5 minutes to speak at COA meetings so it becomes tough to “de-rail the train” at the actual meeting.
The Issues with Minor Variances
There are at least two very contentious issues in the world of minor variances.
New Construction. The first is that there is a school of thought that believes no variances should ever be granted for new construction. The thinking here is that while renovations or additions must deal with the exigencies of the existing structure when an architect or builder is re-building, or building on vacant land, no variance should EVER be given. This school of thought believes that zoning rules are in place for good reasons. The rules are well known and architects, builders and developers should simply design their developments within the rules. Full stop, end of story. Regrettably for many this is not happening in our area and applicants involved in new construction constitute a large number of the total number of applications received by the Town. This is true even though the rules in the R01 and R02 zones have been relaxed to allow larger homes. The CMGRA believes that Town Council should make it very clear both to Town staff and to the COA that variances for new construction should only be allowed in extraordinary circumstances.
What is “Minor”. The second issue has to do with the word “minor”. The Ontario Municipal Act does not authorize the COA to approve any variances – it only authorizes them to approve minor variances. It might have been helpful if the Act defined what is meant by “minor” (by saying something like “less than 10% deviance from the rule”) but it doesn’t. The Act leaves it up to the Committee to decide what is minor and one thing is for certain – minor does not mean “little” or “tiny” or “really small” or what you might think “minor” means. As with many legal processes the courts wind up deciding what the provincial legislature meant when they said “minor” and some of the best lawyers in the province have spent their careers on the concept. If a party does not like a COA decision they can ask for a hearing at the Ontario Municipal Board (OMB). If they don’t like the OMB’s decision they can appeal to the court system. These are expensive processes and it is not surprising then that the leading case in the province on what is “minor” involved resourceful parties - The Rosedale Golf Club in Toronto and a neighbour building a new home abutting the course who also happened to be one of the country’s most successful property developers.
It is important to understanding the process for minor variances to recognize that although the COA is a committee appointed by Town Council you can’t appeal their decisions to Council – the hearing has to start all over again at the Ontario Municipal Board (“OMB”). This can be very frustrating for the parties, the COA and the Municipality itself. In essence our provincial system is that a municipality’s zoning by-laws can be varied by a provincially appointed Board – the OMB. As the case of Rosedale v. DeGasperis illustrates the application can then go to the court system, through various appeals, and then back down to the OMB for a final decision. It can be a costly and time consuming process often amenable more to those with the most at stake - normally the developer.
Mr. and Mrs. DeGasperis were demolishing an existing home and building a new one on their property (in about 2003). They sought minor variances to allow a 10.63 metre high home when only 8 metres was allowed. They also sought permission to build a front balcony of 23.5 square metres and a rear balcony (overlooking the golf course) of 110.6 square metres (later reduced to 81.47 square metres). Believe it or not the by-law requirement for balconies was that neither the front nor the rear balcony could exceed 3.8 square metres, yet this was the subject of a “minor” variance. The Toronto COA denied the applications but the applicants then went to the OMB. By the end of the day the Club and the Applicant had gone through the COA, the OMB, the Ontario Divisional Court and then back to the OMB with victories and defeats for both sides along the way.
The important thing is that the case reinforced everyone’s understanding of the law. There had been some decisions that began to consider concepts like “undue adverse impact” on the neighbours or particular “hardship” on the applicant. The Court re-iterated that all that matters is that the four tests set out in the Planning Act be met. These four tests are that the application(s):
1. be a minor variance;
2. be desirable, in the opinion of the committee, for the appropriate development or use of the land, building or structure;
3. maintain, in the opinion of the committee, the general intent and purpose of the zoning by-law; and
4. maintain, in the opinion of the committee, the general intent and purpose of the official plan.
This is important because no longer should it be open for an applicant to say something like “Well the balcony is over 100 square metres when the by-law says 3.8 BUT the balcony will be behind lots of trees so should not adversely impact the neighbours”. Conversely it should not matter if objectors to the application try to object to a 5 square metre balcony on the basis that it overlooks their hot tub.
Furthermore applicants should not be able to say “we have to build it this big because due to the slope of the land we can’t build a balcony on the other side of the property”. That type of “hardship” is not to be taken into account – and frankly should never have been in new construction.
In the end then there is still no firm definition of what is minor but the court has reminded Committees that the general intent and purpose of the by-law and the intent and purpose of the Official Plan are essential considerations. We remind members of the following statements in “Liveable Oakville” related to our neighbourhoods.
“...encourage the conservation and rehabilitation of older housing in order to
maintain the stability and character of the existing stable residential communities.”
…and with respect to R01 Zoning:
“The Special Policy Area that applies to portions of the Low Density Residential
designation in south and central Oakville is intended to protect the unique character of these areas within the Town as directed by Council. Due to the special attributes of the historically large lots and related homes in this Special Policy Area, intensification shall be limited to development which maintains the integrity of the large lots. A maximum permitted density in this area may be up to 10 units per site hectare notwithstanding the Residential Low Density designation permissions. Intensification may only be permitted at a density within the permitted range that is compatible with the densities of the surrounding neighbourhood and consistent with the lot areas and lot frontages reflected by the zoning of the surrounding neighbourhood.”(Liveable Oakville Section 26.2).
A final reason the DeGasperis case is worth mentioning is that the Court suggests that COA decisions should be in writing, and with reasons given. It is frustrating to try and understand what the COA was thinking if all that is recorded is support or opposition to the application by the members of the COA.
This document has been prepared to provide information of a general nature to members of the CMGRA. This document does not constitute legal advice and members should seek the advice of qualified professionals such as planners and lawyers should they have questions or concerns of their own.
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