John Dance
Minor variances may be difficult, unique, esoteric, costly, time-consuming, required, adversarial, controversial, challenging, frustrating or some combination of all these attributes. They are also a key authorization a property owner needs to make changes to a property that aren’t allowed by the applicable zoning by-law.
Oftentimes, a property owner will apply for a minor variance in order to build higher, wider, deeper, or closer to the street or to adjacent properties than what current zoning laws permit. For instance, a homeowner might want to build a garage that extends 0.5 metres beyond the front of the house toward the street, when the zoning by-law doesn’t allow any extension beyond the face of the house.
To apply for a minor variance, the applicant must follow the procedures of Ottawa’s quasi-judicial, independent Committee of Adjustment (CofA) and pay a fee that currently is about $2,700.00. CofA is comprised of individuals possessing prescribed qualifications who are selected through the City’s public appointments process. Committee members are paid honoraria for each hearing they attend.
Image by City of Ottawa
When a minor variance application is made, CofA staff notifies all landowners within a 60-metre radius of the subject property so that they may make representations at CofA when the committee considers the application. Those who object or support may provide a written submission for the consideration of the committee, and they may also appear at the hearing. The new procedures to deal with the pandemic have made it easier to “appear,” given this is now done on Zoom, rather than having to go to the hearing and wait around in the confines of the office where the hearings were held.
Provincial legislation sets four “tests” for whether or not a minor variance application should be approved. These tests are:
• Is the general intent and purpose of the Zoning By-law maintained?
• Is the general intent and purpose of the Official Plan maintained?
• Is the variance desirable for the appropriate use of land, building, or structure?
• Is the variance minor?
What’s “minor”?
The definition of “minor” is not precise or mathematical. Last month, CofA approved a minor variance application for a property in Old Ottawa East, specifically for a total driveway width of 8.19 metres while the applicable zoning by-law permits a total driveway width of only 3.0 metres. In its decision, CofA noted that the variance is “minor because it will not create any unacceptable adverse impact on abutting properties or the neighbourhood in general.”
If, however, neighbouring residents or the community association had presented sound evidence at the hearing that there were, in their opinion, adverse impacts, then it’s possible that the application would not have been approved as a minor variance.
Whether you are making the case for a minor variance or opposing it, it’s essential that the arguments address these four tests listed above. Furthermore, arguments must be based on the details of the City’s Official Plan, the Old Ottawa East Secondary Plan, the applicable zoning by-law, and other relevant by-laws and provincial legislation (e.g., Mature Neighbourhoods Overlay, Tree Protection By-Law).
Residents may object to the architectural design of a proposed change, but design-based objections carry no weight in CofA’s consideration. Similarly, it’s key to note that a property owner may make major “as of right” changes to a property without requiring a minor variance, provided the changes meet the existing zoning by-law. For example, a small, one-storey bungalow may be demolished and replaced by a two-storey building with a bigger footprint and smaller yard provisions, provided the new building meets the zoning requirements.
One other wrinkle: Ontario’s Planning Act protects pre-existing land uses so that a non-conforming building may be rebuilt “as of right” within the same footprint, height, and mass. That is, no minor variance is required if the property owner gets municipal concurrence on what constitutes pre-existing land use. The consequence is that even if current applicable zoning allows, for example, only two storeys, an owner can rebuild a three-storey building if the building was allowed to be three storeys before the current zoning came into effect.
The province’s new More Homes Built Faster Act removes the right of a community association or a neighbour to appeal a CofA decision on a minor variance to the Ontario Land Tribunal (OLT). However, an applicant may appeal the decision or may seek a zoning by-law amendment to accommodate the requested variance. This rezoning could be considered to be a major variance, although this is not a formal term. Both OLT appeals and rezoning are difficult, lengthy and often costly propositions.
Old Ottawa East review
The Old Ottawa East Community Association (OOECA) Planning Committee (OOEPC) reviews about a dozen requests for minor variances each year. The experience of OOEPC is that approval of minor variances is expedited when the applicant meets with nearby neighbours to discuss proposed variances, listens to concerns, and, where possible, makes modifications to address concerns. Similarly, OOEPC appreciates an applicant presenting any proposals to OOEPC, preferably before an application is made to CofA.
After reviewing an application, OOEPC will write to CofA and either express “no objection” or provide a specific objection to a requested variance. OOEPC’s primary interests are whether the requested minor variance conforms to the Old Ottawa East Secondary Plan, whether it is consistent with neighbourhood character and/or whether it establishes an undesirable precedent for Old Ottawa East neighbourhoods.
The City of Ottawa Planning Department’s staff provides written analyses and opinions on requested variances which are useful for all involved parties. Unfortunately, sometimes the City staff’s analysis isn’t provided until the day before a hearing, rendering it difficult for parties to factor the analysis into their written submissions to CofA, which are supposed to be submitted to the committee two days before the meeting.
Both CofA and the Federation of Citizens‘ Associations are studying how the minor variance process can be improved
John Dance is Chairperson of the OOECA Planning Committee.
