Are you Aware of the Grey Areas for Minor Variances?

The minor variance is a useful planning tool for any property owner to know and overcome the rigidity of a municipality's or city's zoning and subdivision by-laws.

This regulatory technique is widely used by municipalities in a variety of areas to overcome certain difficulties that are considered minor. It makes it possible to transgress specific regulatory standards, without the need for a formal regulatory amendment.

Minor variances are granted by resolution of the municipal council, after obtaining the advice of the municipality's Planning Advisory Council ("PAC"). For example, minor variances may be used in the following situations:

• an encroachment;
• building setbacks;
• parking and driveway standards;
• landscaping;
• building dimensions;
• sign and billboard posting standards;
• distances between a farm and a neighbouring residence;
• etc.

The minor variance: a discretionary concept to be defined by municipalities

Under the Planning and Development Act, each municipality is free to specify the provisions of its zoning and subdivision by-law that may be subject to a minor variance, requiring that each by-law be analyzed separately.

Municipal decision-makers have broad discretion in determining what constitutes a major or minor variance. The courts have reiterated on several occasions, that a strict definition of this concept is impossible to develop, since each case must be assessed on its own merits, based on its own circumstances. In the recent decision obtained by BCF, the Court of Appeal also reiterated the fact that the minor nature of a variance is assessed according to a qualitative, not a quantitative, standard. Thus, it is not a question of numbers; it is the result of the deviation that is important to analyze.

Essential criteria to be met

Furthermore, although the possibilities for using the minor variance technique are multiple and discretionary, the Act respecting land use planning and development (“RCM plan”) provides certain essential criteria that must be met in order to benefit from it. It is important to demonstrate that:

• the minor variance respects the objectives of the municipality's urban plan;
• in the absence of a minor variance, the application of the by-law would cause serious prejudice to the person requesting it;
• the minor variance does not affect the enjoyment of the property rights of the owners of neighbouring properties.

Finally, it should be noted that minor variances cannot concern standards relating to land use, land occupancy density or a building located in an area where land use is subject to special constraints for reasons of public safety.

The preparation of a strong and well-researched business case is essential to convince City Council to grant the minor variance application. Properly mastered, this tool can help avoid many undesirable problems in the event of a building's non-compliance, such as fines or demolition work.

A lawyer with a good knowledge of this particular aspect of municipal law, will be able to help you prepare a file that meets all applicable criteria. Do not hesitate to contact our lawyers, Isabelle Landry and Audrey-Anne Béland, to learn more about this process.