COMMITTEE OF THE WHOLE REPORT: BOARD OF VARIANCE UPDATE REPORT

BOARD OF VARIANCE UPDATE REPORT

RECOMMENDATION

THAT Council receive the report from the Community Planner dated February 3, 2021 and entitled “BOARD OF VARIANCE UPDATE REPORT” for information.

CHIEF ADMINISTRATIVE OFFICER’S COMMENTS

I concur with the recommendation.

DIRECTOR OF DEVELOPMENT SERVICES’ COMMENTS

I concur with the recommendation.

PURPOSE OF REPORT

The purpose of this report is to update Council with the Board of Variance activities in recent years, in terms of applicant properties, variances requested, decisions rendered and the reasoning behind the fee structure.

This report addresses Council Action List Item C-114-20 dating from the October 20, 2020 meeting of Council:

THAT staff provide a report regarding the Board of Variance fee structure; decisions made on minor variance applications over the past three years by the Board of Variance; and additional information pertaining to Part 14: Division 15 "Board of Variance" from the Local Government Act.

BACKGROUND

The Board of Variance is established through Part 14, Division 15 of the Local Government Act (LGA). A municipality with a population of less than 25,000 and an enacted Zoning Bylaw must establish a 3-person Board. The Board is independent from Council.

The breadth of the legislation is too great for a quick summary; the section of the LGA regulating the Board of Variance is attached to this report (Attachment 1). The most often referenced section contains guidance for the BOV with respect to the boundaries of their decision making:

(1) On an application under section 540, the board of variance may order that a minor variance be permitted from the requirements of the applicable bylaw, or that the applicant be exempted from section 531 (1) [alteration or addition while non-conforming use continued], if the board of variance

(a) has heard the applicant and any person notified under section 541,

(b) finds that undue hardship would be caused to the applicant if the bylaw or section 531 (1) is complied with, and

(c) is of the opinion that the variance or exemption does not do any of the following: (i) result in inappropriate development of the site; (ii) adversely affect the natural environment; (iii) substantially affect the use and enjoyment of adjacent land; (iv) vary permitted uses and densities under the applicable bylaw; (v) defeat the intent of the bylaw; (vi) vary the application of an applicable bylaw in relation to residential rental tenure.

PROJECT INFORMATION

Board Processes and Scope

Of importance in the Board’s process are the two tenets of the Board’s decision-making scope: variances that are minor and variances that are based in hardship. The board is responsible for determining the definition of both words themselves, given that these requirements are subjective in nature.

Staff has discussed these notions with the Board over the years and some common themes and opinions have emerged from Board members:

1. If there is substantial neighbour opposition to the variance, it is not a good candidate for approval by the BOV.
2. If the application is for a new build and varies regulations which have not changed since the construction, it is not a good candidate for approval by the BOV.
3. If there are many variances requested, it is not a good candidate for approval by the BOV.

An applicant, in addressing a required variance, has the right to choose to make application to the Board rather than to Council. Staff will counsel that applicant as to the most appropriate application to make, keeping in mind the parameters set out in the legislation above regarding items the board cannot address. Typically, applicants are intent in making the most appropriate and expeditious application and there have been few cases where a Board application has gone forward counter to the staff advice to the applicant. It is not staff’s intent to sway the applicant one way or another, but rather serve them with the most information about both processes to enable the applicant to make an informed decision.

Staff does not make a recommendation in a report to the Board, unlike reports to Council. A report merely outlines the context of the variance(s), the bylaw regulations in question, and other factual issues.

Speaking anecdotally, current Staff has not witnessed a Board decision they felt was egregiously untoward or unjust in any sense in their administration of the Board, which extends back almost 10 years. Attachment 1 provides a list of recent BOV applications and decisions to give Council a sense of the types of applications and the decisions that have been made by the Board of Variance.

Application Denials, Appeals and New Applications

A Board of Variance decision is final, as per the Local Government Act. An applicant may, however, make a new application to Council as a Development Variance Permit to address a variance which is turned down by the Board. Equally, an applicant may apply to the Board with an application that was turned down by Council. These rights are, again, set out in the Local Government Act. While staff cannot recall such an occasion, the history and decision of the other authority would likely be noted in either subsequent staff report.

Fee Structure

A Board of Variance application is $300, whereas a Development Variance Permit is $550. The reasoning behind the difference in application fees is that BOV applications take up less staff time, noting the mandate to cover the municipality’s costs with application fees:

1. The application is not typically circulated to all departments. Development Services and Building review, but Engineering and Fire are not normally involved due to the minor variances requested.
2. The reports and the agendas are much simpler. Much less time is required to review applications, write reports and assemble and distribute agendas. Again, this is due to the simpler nature of the applications. The notification distance for a BOV application is 100 meters, which is the same as a DVP application.
3. The reports are not reviewed by Directors or the CAO.

NEXT STEPS

While Staff believes that the Board members have done the Town an excellent service the past many years, there are things which could be improved in terms of service and transparency in the Board’s operation.

1. The Town could publish an information sheet for potential Board of Variance applicants which includes a statement from Board members addressing the following: a) Definitions of ‘minor’ and ‘hardship’ b) Examples of what the Board would consider to be an acceptable application, and what the Board would consider to be unacceptable.
2. Staff could investigate its ability to make recommendations for approval or denial of an application to the Board.

RECOMMENDATION

THAT Council receive the report from the Community Planner dated February 3, 2021 and entitled “BOARD OF VARIANCE UPDATE REPORT” for information.

SUBMITTED BY: J. Davison MCIP RPP, Community Planner

REVIEWED BY: L. Chase MCIP RPP, Director of Development Services

ATTACHMENTS:

1. Board of Variance Applications Summary since October 2018.
2. LGA legislation excerpt relating to Boards of Variance