Minor variances – Resident’s guide

Minor variances (MV) may be difficult, unique, esoteric, costly, time-consuming, required, adversarial, controversial, challenging, frustrating or some combination of all these attributes.

They also are a key means for a property owner to get permission to make changes to their property that aren’t allowed by the applicable zoning by-law (ZBL).

That is, a property owner may want to build higher, wider, deeper, closer to the street or to adjacent properties than what current zoning allows.

Specifically, an application for a minor variance may be made by a property owner when a proposed building change doesn’t conform exactly to the ZBL. 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 ZBL doesn’t allow any extension beyond the front face of the house.

To make an application 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.

CofA is composed of individuals possessing prescribed qualifications who are selected through the City’s public appointments process. Committee members are paid an honorarium for each hearing they attend.

When an application is made, the staff of CofA notifies all property owners within a 60-metre radius of the subject property so that they re aware of the application and may provide written comments and make representations at the hearing of the CofA when the committee considers the application. The procedures to deal with the pandemic have been continued, making it easier to “appear” via Zoom rather than having to go the hearings at Ben Franklin Place, 101 Centrepointe Drive and wait around until the relevant application is considered.

Provincial legislation sets four “tests” for whether or not a minor variance application should be approved:

1. Is the general intent and purpose of the Zoning By-law maintained?
2. Is the general intent and purpose of the Official Plan maintained?
3. Is the variance desirable for the appropriate use of land, building, or structure?
4. Is the variance minor?

What’s “Minor”?

The definition of minor is neither precise nor mathematical. For instance, CofA recently approved an OOE minor variance for a total driveway width almost three times what the zoning by-law allows. 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 presented sound evidence at the hearing that there were, in their opinion, adverse impacts, it’s possible that the variance would not have been approved as a minor variance.

Whether you are making the case for, or opposing, a minor variance, it’s essential that the arguments address these four tests. Furthermore, arguments must be based on the details of the City’s Official Plan, the Old Ottawa East Secondary Plan, the zoning by-law, and other relevant by (e.g., Tree Protection By-Law).

Considerations

Residents should not object to the architectural design or style of a proposed change (e.g., flat roof), because such an objection carries no weight in CofA’s consideration. 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: The provincial Planning Act protects pre-existing land uses so that a non-conforming building may be rebuilt “as of right” within 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, say, 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.

Recent provincial legislation has removed 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 a CofA decision or may seek a zoning by-law amendment to accommodate the requested variance if the requested variance was denied by CofA.

OLT appeals are often time-consuming and costly propositions. Applicants are generally willing to hire professional planners and lawyers to make their case or to appeal a decision and the planners/lawyers’ testimony is usually persuasive with CofA members and with OLT adjudicators. One other aspect that biases the proceedings against those who object to an appeal is that the City of Ottawa tends to be pro-development and not particularly supportive of neighbouring residents or community associations’ concerns.

Community Association Review

The OOECA planning committee (OOEPC) reviews about a dozen requests for minor variances each year.

The experience of the OOEPC is that approval of minor variances is expedited when the applicant meets in advance with nearby neighbours to discuss proposed variances and the related project, 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. Ongoing constructive dialogue between the parties can save considerable effort, expense and aggravation.

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 undesirable precedent for OOE neighbourhoods.

Specifically, OOEPC focuses on applications where the following are sought:

• reduced rear yard setbacks
• reduced front yard setbacks
• “material” increases in height, and when
• trees are threatened or the requested variances limit the potential for additional large trees.

The City planning department’s staff provide written analyses and opinions on requested variances and these are useful for all involved parties. Unfortunately, sometimes the City’s analysis isn’t provided until shortly before a hearing, making it difficult to reflect such analysis in OOEPC’s or a resident’s written submission to CofA, something that is supposed to be provided two days before the meeting.

A property owner’s CofA application will address how the requested minor variance(s) meet the four tests. Residents can then look at the applicable and related provisions of the Official Plan, the OOE Secondary Plan and the zoning by-law to assess the strength of the applicant’s case. This will require hours of research but only by understanding the governing planning provisions can a resident determine whether or not a case can be made that has some likelihood of successfully opposing a requested variance.

References

The relevant City documentation is readily available on the City’s website. (Search for “City of Ottawa Minor Variance”) The ZBL is currently (2024-2026) being revised and it is likely that new provisions will allow property owners to build “more” than what is now allowed. It will be interesting to see if applicants will still seek as many minor variances after the revised zoning by-law is loosened. Some developers have tended to use whatever is approved as the starting point for what they seek so that the new zoning by-law may have little impact on the number of MVs sought.

OOEPC will, within the constraints of its volunteers’ time, provide residents with advice on requested minor variances. However, unless one or more of the key “focus” criteria is at play, OOEPC is unlikely to assume a primary role in objecting to a MV request. Although OOEPC may be able to support residents when they have objections to a MV, the lead role generally should be taken by the objecting residents. They will be required to write to the CofA, make the case against the application, and, in order to have any likely influence on the CofA decision, appear at the specified hearing, something that must be requested in advance of the hearing date.

Contact information

If residents wish to discuss a particular minor variance application, email planning.committee@ottawaeast.ca, specifying the minor variance (MV) in the subject line.

We also welcome email suggestions on how this guide can be improved.