Your Guide to a Minor Variance It is that time of year again.  I have worked hard designing their dream cottage or renovation.  Now with spring upon us, it is time to attend at the Planners Office and discuss the projects.  In one case, I will need to attend the Committee of Adjustment and apply for a minor variance.  A minor variance is required as we want to alter or develop the property in a way that does not conform with the Zoning By-law.  To obtain planning approval you need to apply for a site-specific amendment to the By-law. You can do this through a Minor Variance application. So while I was filling out the application, form I thought this issue might be a good topic for a blog that may help you all in understanding a minor variance application.  So here we go – there are four main tests that must be fulfilled for a minor variance (ss. 45(l) of the Planning Act (PA)).

1. Is the variance minor?

One key questions is whether the variance is actually minor in nature.  A variance can be held to be not minor for two reasons, that it is too large or too important to be considered minor. The latter reason can be resolved by determining the extent of the impact on neighbouring properties in the immediate and general area. The primary issues raised for abutting owners are related to loss of sunlight, privacy, views, spacing and openness which may result from the mass, height and bulk of the proposed design.  There may also be issues related to access, trees, parking, drainage, traffic and noise. The issues that may arise related to the general area are that the design is incompatible with the established built form and character of the neighbourhood or community.  This is the argument that is often heard in cottage country – the design is too large, too modern or too close to the lake.

2. Would the granting of the variance result in a development that would be desirable for the appropriate development or use of the applicant’s land or building?

 The variance must be desirable from a planning and public interest perspective.  The test of desirability includes consideration of the many factors that can affect the broad public interest as it relates to the applicant’s property and accepted planning principles and the existing pattern of development.  The nature and the characteristics of the area are determinative factor in the second part of the test.

3. Does the variance requested maintain the general intent and purpose of the zoning by-law?

The intent and purpose of a zoning by-law is to prescribe the front, rear and side yard set backs, building size, height and use. It speaks to matters such as spacing, privacy, density, light and air and gives the community its built form and character.   A design should retain the intended characteristics even if not strictly adhering to the prescribed setbacks.

4. Does the variance requested maintain the general intent and purpose of the Official Plan (OP)?

The variance must generally conform or support the principles of the official plan.  The OP although a municipal document, derives its authority from section 16 of the PA and is the overall master-planning document for the city or town. It contains the goals, objectives and policies to guide future land use and development within the city and contains elements of the provincial government’s intensification policy. In addition to the above, there is a Statutory requirement in subsection 3(5) of the PA that the decisions of all planning tribunals must be consistent with government policy statements. The Ontario government issued a formal document regulating land development known as the Provincial Policy Statement (PPS). This is where the government’s intensification policy originates and accordingly persons objecting to any matter coming before the Committee should read and document the provisions supporting their application.

The Issues

The following are the issues that most often arise and are argued before the Planning Tribunals.  The most common one argued for my lakeside design clients is community character.  Most of my design conform with the aspect but there are some new builds that simply ignore the character of the community and “overbuild” for the area and the lake.

Community Character
I was recently reading a cottage life article on a new modern cottage that is proposed for Lake Muskoka.  The neighbours are very upset about the development as they feel it is out of character for the Muskokan community.  They were also concerned that the foreign owners that have spent little if any time at the cottage and their foreign architects (who have never visited the site) have really understood the natural aesthetic and building environment that is unique to Muskoka.
Please see https://cottagelife.com/realestate/futuristic-looking-cottage-causes-controversy-in-muskoka/ It will be interesting to see if the Committee of Adjustment approves the proposal.

Generally, speaking the natural environment should be considered to see whether it exhibits a reasonably uniform building period in style or design, scale and spacing. If it does, then irrespective of whether the zoning by-law or intensification policies now permit a larger structure or overbuilding infill, the character of the neighbourhood is deserving of protection and this will be a factor to be seriously considered by both the Committee and the Ontario Municipal Board (OMB).

New developments should be compatible and respect the established physical character of the neighbourhood. Proposed developments which may be considered: out of scale; out of character; inappropriate; destabilizing the character of the neighbourhood; a break in the pattern or continuity of the street; insensitive; visually incongruous or detrimental to the streetscape, should be discouraged and objected to. Apart from the built form and heritage arguments that may be advanced here, it should be said that a primary factor often considered by people motivated to purchase in a particular neighbourhood, is the degree of spaciousness, sunlight and privacy that was dictated by the zoning by-laws existing when the neighbourhood was developed. They paid a higher purchase price and higher annual taxes for the enjoyment of these qualities and are entitled to protection from a reduction in zoning standards. It has been argued that residents should be able to rely upon a municipalities former zoning policies and it is a breach of trust when they are diminished.  

Privacy and Views
While there is no legal right in Ontario to sunlight, privacy or views, the Planning Tribunals have often in the face of insensitive development granted relief to neighbouring owners facing the loss of these qualities. The issue is not whether neighbours have a right to “light, privacy and views” (they don’t) but whether a proposed obstruction to such long established amenities is of such a magnitude as to cause an unacceptable adverse impact upon the community to the point where the intent and purpose of the zoning by-law is not maintained. (Test 3)

Sunlight
Shadowing is the result of overbuilding and an insensitive increase in mass, height and bulk. Where this is a serious issue, it will warrant a sun and shade study which is easily obtainable. Such an objective and professionally qualified Report will greatly increase the chance of success in this issue. The number, size and location of windows in your home and the nature of family activities inside the areas served by those windows (e.g. early orning sun in breakfast room) will be an important factor in assessing the impact on a families quality of life as will the loss of enjoyment in gardening and other outside activities in areas to suffer shadowing.  

Privacy
There is recognition in reported Decisions for the degree of discomfort for which a sense of being exposed can bring and proposed overbuilding allowing an overview of neighbouring properties is discouraged. Visual intrusion of this nature can take the form of views into windows of abutting homes or overviews of gardens and other outside private family areas. The number, size and location of windows in both the proposed and abutting houses will be an important factor. Views While as stated there is no legal right to a view over the property of others, the OMB has on occasion protected the views and visual enjoyment of open areas shared by the community as a whole and the negative impact of insensitive and obstructive overbuilding on greenery and openness can be argued.  

Mass of the Building
In establishing the front, side and rear yard setbacks and allowable height, zoning bylaws dictate the maximum legal size of a residential structure. Seeking variances to overbuild beyond what is allowed as of right frequently raises issues of mass, bulk and height. Computer or actual modeling can be useful in dramatizing existing, as of right and proposed developments and the comparative effect on adjoining homes. A factor for consideration is whether the proposed construction is limited to the rear yard or does it impact on the openness and spacing of the streetscape and by encroaching into the side yards create a windowless barrier effect to the neighbours. A subject to be raised here is whether some part of the proposed structure can be reduced in mass or height to minimize the impact on neighbouring homes.  

Drainage
The foundations of older homes are particularly vulnerable to water leakage and lot drainage problems created by new development must be addressed. Failure to do so must be argued by abutting owners.  Trees The issue here is the impact on neighbouring properties from loss with respect to screening, shade and greenery. Questions to be raised are how many trees (or roots) are to be lost, condition or health of trees and age. An arborist may be consulted for a report. Replacement or replanting may be negotiated if there is sufficient space and sunlight and the Tribunals have often imposed these conditions as a qualification of consent.  

Necessity
The question should always be asked as to whether need can be shown for an increase in floor space. How many occupants are there to be? Can the increase in density and the impact on the abutting owners and neighbours be warranted where no hardship or compelling reason or need can be demonstrated for overbuilding? Can the developer’s requirements be met with a structure within the limits of the existing by-laws? Can the height or mass be reduced? Although not one of the four Statutory Tests, variances have been refused where the applicant has been unable to give persuasive reasons beyond whimsy, convenience or profit, none of which are considered valid reasons by planning authorities.

I hope this article was useful to you.

Here is a  If you would like to find out more, review this Guide to a Minor Variance prepared by the Town of Huntsville.  or please get in touch 

Your Guide to a Minor Variance It is that time of year again.  I have worked hard designing their dream cottage or renovation.  Now with spring upon us, it is time to attend at the Planners Office and discuss the projects.  In one case, I will need to attend the Committee of Adjustment and apply for a minor variance.  A minor variance is required as we want to alter or develop the property in a way that does not conform with the Zoning By-law.  To obtain planning approval you need to apply for a site-specific amendment to the By-law. You can do this through a Minor Variance application. So while I was filling out the application, form I thought this issue might be a good topic for a blog that may help you all in understanding a minor variance application.  So here we go – there are four main tests that must be fulfilled for a minor variance (ss. 45(l) of the Planning Act (PA)).

1. Is the variance minor?

One key questions is whether the variance is actually minor in nature.  A variance can be held to be not minor for two reasons, that it is too large or too important to be considered minor. The latter reason can be resolved by determining the extent of the impact on neighbouring properties in the immediate and general area. The primary issues raised for abutting owners are related to loss of sunlight, privacy, views, spacing and openness which may result from the mass, height and bulk of the proposed design.  There may also be issues related to access, trees, parking, drainage, traffic and noise. The issues that may arise related to the general area are that the design is incompatible with the established built form and character of the neighbourhood or community.  This is the argument that is often heard in cottage country – the design is too large, too modern or too close to the lake.

2. Would the granting of the variance result in a development that would be desirable for the appropriate development or use of the applicant’s land or building?

 The variance must be desirable from a planning and public interest perspective.  The test of desirability includes consideration of the many factors that can affect the broad public interest as it relates to the applicant’s property and accepted planning principles and the existing pattern of development.  The nature and the characteristics of the area are determinative factor in the second part of the test.

3. Does the variance requested maintain the general intent and purpose of the zoning by-law?

The intent and purpose of a zoning by-law is to prescribe the front, rear and side yard set backs, building size, height and use. It speaks to matters such as spacing, privacy, density, light and air and gives the community its built form and character.   A design should retain the intended characteristics even if not strictly adhering to the prescribed setbacks.

4. Does the variance requested maintain the general intent and purpose of the Official Plan (OP)?

The variance must generally conform or support the principles of the official plan.  The OP although a municipal document, derives its authority from section 16 of the PA and is the overall master-planning document for the city or town. It contains the goals, objectives and policies to guide future land use and development within the city and contains elements of the provincial government’s intensification policy. In addition to the above, there is a Statutory requirement in subsection 3(5) of the PA that the decisions of all planning tribunals must be consistent with government policy statements. The Ontario government issued a formal document regulating land development known as the Provincial Policy Statement (PPS). This is where the government’s intensification policy originates and accordingly persons objecting to any matter coming before the Committee should read and document the provisions supporting their application.

The Issues

The following are the issues that most often arise and are argued before the Planning Tribunals.  The most common one argued for my lakeside design clients is community character.  Most of my design conform with the aspect but there are some new builds that simply ignore the character of the community and “overbuild” for the area and the lake.

Community Character
I was recently reading a cottage life article on a new modern cottage that is proposed for Lake Muskoka.  The neighbours are very upset about the development as they feel it is out of character for the Muskokan community.  They were also concerned that the foreign owners that have spent little if any time at the cottage and their foreign architects (who have never visited the site) have really understood the natural aesthetic and building environment that is unique to Muskoka.
Please see https://cottagelife.com/realestate/futuristic-looking-cottage-causes-controversy-in-muskoka/ It will be interesting to see if the Committee of Adjustment approves the proposal.

Generally, speaking the natural environment should be considered to see whether it exhibits a reasonably uniform building period in style or design, scale and spacing. If it does, then irrespective of whether the zoning by-law or intensification policies now permit a larger structure or overbuilding infill, the character of the neighbourhood is deserving of protection and this will be a factor to be seriously considered by both the Committee and the Ontario Municipal Board (OMB).

New developments should be compatible and respect the established physical character of the neighbourhood. Proposed developments which may be considered: out of scale; out of character; inappropriate; destabilizing the character of the neighbourhood; a break in the pattern or continuity of the street; insensitive; visually incongruous or detrimental to the streetscape, should be discouraged and objected to. Apart from the built form and heritage arguments that may be advanced here, it should be said that a primary factor often considered by people motivated to purchase in a particular neighbourhood, is the degree of spaciousness, sunlight and privacy that was dictated by the zoning by-laws existing when the neighbourhood was developed. They paid a higher purchase price and higher annual taxes for the enjoyment of these qualities and are entitled to protection from a reduction in zoning standards. It has been argued that residents should be able to rely upon a municipalities former zoning policies and it is a breach of trust when they are diminished.  

Privacy and Views
While there is no legal right in Ontario to sunlight, privacy or views, the Planning Tribunals have often in the face of insensitive development granted relief to neighbouring owners facing the loss of these qualities. The issue is not whether neighbours have a right to “light, privacy and views” (they don’t) but whether a proposed obstruction to such long established amenities is of such a magnitude as to cause an unacceptable adverse impact upon the community to the point where the intent and purpose of the zoning by-law is not maintained. (Test 3)

Sunlight
Shadowing is the result of overbuilding and an insensitive increase in mass, height and bulk. Where this is a serious issue, it will warrant a sun and shade study which is easily obtainable. Such an objective and professionally qualified Report will greatly increase the chance of success in this issue. The number, size and location of windows in your home and the nature of family activities inside the areas served by those windows (e.g. early orning sun in breakfast room) will be an important factor in assessing the impact on a families quality of life as will the loss of enjoyment in gardening and other outside activities in areas to suffer shadowing.  

Privacy
There is recognition in reported Decisions for the degree of discomfort for which a sense of being exposed can bring and proposed overbuilding allowing an overview of neighbouring properties is discouraged. Visual intrusion of this nature can take the form of views into windows of abutting homes or overviews of gardens and other outside private family areas. The number, size and location of windows in both the proposed and abutting houses will be an important factor. Views While as stated there is no legal right to a view over the property of others, the OMB has on occasion protected the views and visual enjoyment of open areas shared by the community as a whole and the negative impact of insensitive and obstructive overbuilding on greenery and openness can be argued.  

Mass of the Building
In establishing the front, side and rear yard setbacks and allowable height, zoning bylaws dictate the maximum legal size of a residential structure. Seeking variances to overbuild beyond what is allowed as of right frequently raises issues of mass, bulk and height. Computer or actual modeling can be useful in dramatizing existing, as of right and proposed developments and the comparative effect on adjoining homes. A factor for consideration is whether the proposed construction is limited to the rear yard or does it impact on the openness and spacing of the streetscape and by encroaching into the side yards create a windowless barrier effect to the neighbours. A subject to be raised here is whether some part of the proposed structure can be reduced in mass or height to minimize the impact on neighbouring homes.  

Drainage
The foundations of older homes are particularly vulnerable to water leakage and lot drainage problems created by new development must be addressed. Failure to do so must be argued by abutting owners.  Trees The issue here is the impact on neighbouring properties from loss with respect to screening, shade and greenery. Questions to be raised are how many trees (or roots) are to be lost, condition or health of trees and age. An arborist may be consulted for a report. Replacement or replanting may be negotiated if there is sufficient space and sunlight and the Tribunals have often imposed these conditions as a qualification of consent.  

Necessity
The question should always be asked as to whether need can be shown for an increase in floor space. How many occupants are there to be? Can the increase in density and the impact on the abutting owners and neighbours be warranted where no hardship or compelling reason or need can be demonstrated for overbuilding? Can the developer’s requirements be met with a structure within the limits of the existing by-laws? Can the height or mass be reduced? Although not one of the four Statutory Tests, variances have been refused where the applicant has been unable to give persuasive reasons beyond whimsy, convenience or profit, none of which are considered valid reasons by planning authorities.

I hope this article was useful to you.

Here is a  If you would like to find out more, review this Guide to a Minor Variance prepared by the Town of Huntsville.  or please get in touch