Canada: Navigating Zoning Regulations: What Is A Variance And How To Obtain One

Introduction to Land Zoning

Zoning regulations wield substantial influence over property owners' rights to utilize and develop their land. These regulations, typically established by governmental bodies, encompass many aspects of how land may be used, ranging from permissible building types and subdivision criteria to development density, approved land uses within specific zones, and guidelines for construction location and methods. In Saskatchewan, the zoning regulatory framework primarily stems from The Planning and Development Act, 2007 (the "Act").

Failure to adhere to these zoning regulations can result in a spectrum of consequences, ranging from minor inconveniences to severe repercussions for violators. However, allowances for deviations from standard zoning bylaws are possible through the acquisition of a variance. Lack of understanding about the variance process can have adverse effects not only on individuals but also on municipalities. Municipalities that are unaware of the existing legal framework risk having their variance decisions appealed. This article delves into the process of obtaining a variance in Saskatchewan and elsewhere.

What is a variance?

A variance is a formal procedure through which property owners seek permission to depart from specific requirements or standards set forth in relevant zoning bylaws. These departures often involve aspects such as building setbacks, heights, or other development criteria within designated zones.

The authority responsible for approving variances (i.e., the municipality), contingent upon the particular zoning bylaw in effect, may impose limitations on the extent of permissible deviations from existing requirements, often expressed as maximum percentage thresholds. Additionally, the municipality may require applicants to notify affected property owners of any decisions regarding variance requests. Procedures for revoking approval applications might also be delineated, particularly in cases where objections are raised.

Zoning bylaws are obligated to outline the procedures for submitting and processing variance applications, including the establishment of a comprehensive record of such applications. Furthermore, the municipality may levy fees associated with various stages of the variance process, encompassing application submission, review, approval, enforcement, regulation, and issuance.

How to obtain a variance

The standard procedure for obtaining a variance typically involves three key stages: 1) Application, 2) Decision, and if necessary, 3) Appeal. Initially, parties submit their variance request through an application, clearly stating the variance they are seeking from the existing zoning bylaw. Subsequently, the municipality evaluates the application, rendering one of three possible decisions: approval of the variance as requested, approval with additional terms and conditions, or outright refusal.

In the event of a refusal, recourse is available through the provisions outlined in the Act, affording individuals the right to appeal the decision, first to the Development Appeal Board (the "Board"), then to the Saskatchewan Municipal Board, Planning Appeals Committee (the "Committee"). Even if a variance is denied by council or another decision-making body, pursuing an appeal under the Act may still yield a favorable outcome.

The Board's Test for evaluating variances

It is crucial to acknowledge, in line with the ruling in James Grant Gillingham v Prince Albert (City), 2023 SKMB 56 (CanLII) [Gillingham], "The granting of a variance request by a Board or the Committee is not the same as setting a binding Precedent. Each appeal must be determined independently, based on its own merits." Simply because a variance has been granted or denied under similar circumstances does not conclusively determine the outcome of subsequent variance requests. Each appeal must be assessed on its own merits.

In determining whether a variance will be granted, the Committee uses the following test, which seeks to determine whether granting a variance will:

1. Provide a special privilege inconsistent with the restrictions on neighbouring properties in the same zoning district;
2. Defeat the intent of the Bylaw; or
3. Negatively impact neighbouring properties

This test is derived from existing caselaw and s. 221(d) of the Act.

Special Privilege

The test for determining whether granting a variance would amount to a special privilege comes from St. Andrews Presbyterian Church v Saskatoon (City), 1987 CanLII 4527 (SKCA) which provides:

If the remedy sought by the property owner would typically be granted in a similar scenario, the variance is not deemed a special privilege; consequently, the variance should not be impeded at this part of the test.

Preceding case law, such as PAC -1/2009, Srdjan Arsic v Saskatoon (City), which was upheld by the Court of Appeal in Saskatoon (City) v Arsic, 2009 SKCA 122 (CanLII), establishes that a variance applicant does not have to demonstrate an "overwhelming need" to succeed in their application. This illustrates that a variance may be sought and granted without an exceptional need to bypass zoning bylaws.

In accordance with Mohan Dhesi v Community Planning, 2024 SKMB 3 (CanLII) [Mohan], the Board and Committee cannot conclude that a requested variance would constitute a special privilege without providing an analysis supporting such a determination. At this stage, the Board or Committee may halt the variance process only if there is sufficient justification for denying the variance due to the perceived special privilege.

Does the variance defeat the intent of the bylaw

When considering a variance, the administrative body evaluates whether granting it would undermine the purpose or objectives of the bylaw. For instance, in Mohan, a variance related to the setback requirement for an accessory building was deemed acceptable. This decision was based on the understanding that setback regulations aim to ensure safe distances between structures, promoting privacy and accessibility. Granting the variance in this instance did not contradict the intended goals of the bylaw.

When evaluating a variance application, it's essential for the approving body to grasp and adhere to the underlying purpose of the relevant bylaw. During this stage of evaluation, if the variance contradicts the intended function of the bylaw, it's probable the variance will be rejected. A thorough comprehension of the surrounding bylaws, their objectives, and their application can significantly streamline the process for prospective applicants, saving them valuable time, minimizing stress, and avoiding unnecessary expenses associated with contesting a variance that does not align with the bylaw's intent.

Negative Impact

As per Gillingham, the third part of the test considers whether granting the variance will "injuriously affect the neighbouring properties." During this phase, the approving body should meticulously examine the surrounding evidence to gauge the potential negative ramifications. Factors such as the degree to which these impacts have been acknowledged and mitigated, as well as the overall context of the situation, are thoroughly considered in determining whether the variance should be granted.

By scrutinizing these aspects, the approving body ensures that the granting of the variance does not unduly harm neighboring properties or disrupt the overall harmony and integrity of the community. This rigorous examination serves to safeguard the interests and well-being of all parties involved and ensures that any decision regarding the variance is made with careful consideration of its potential impacts on the surrounding area.

When will a variance be granted or denied?

Municipalities can take several steps to ensure the proper assessment of variances. To address the test established by the Committee in determining whether to grant a variance, municipalities can incorporate specific criteria into their zoning bylaws. These criteria should align with the factors outlined in the test, including the consideration of whether the variance would provide a special privilege inconsistent with neighboring properties, defeat the intent of the bylaw, or negatively impact neighboring properties. By codifying these criteria in zoning bylaws, municipalities can provide clarity and consistency in the variance assessment process.

Furthermore, municipalities can establish transparent procedures for reviewing and adjudicating variance applications. This may include providing guidance to applicants on the information and documentation required for a variance application, as well as establishing clear timelines for the review process. Additionally, municipalities can facilitate public participation in the variance assessment process by holding public hearings or meetings to allow for input from affected property owners and community members.

Overall, by implementing these measures, municipalities can effectively respond to the criteria outlined in Gillingham and better ensure the proper assessment of variances in accordance with applicable laws and regulations, bolstering their own process and better preparing their decisions to pass the scrutiny of an appeal.

By familiarizing oneself with the legal framework and procedural requirements, applicants can tailor their variance requests to align closely with the established criteria, thereby enhancing the likelihood of approval. Additionally, understanding the potential grounds for appeal and taking proactive measures to address any potential objections or challenges can further bolster the robustness of the variance application.

A comprehensive understanding of the surrounding laws and procedures is indispensable for maximizing the chances of success when seeking a variance. This knowledge equips both applicants with the tools and insights needed to navigate the variance process effectively and optimize their prospects of obtaining the desired variance.

Conclusion

Understanding land zoning regulations and the process of obtaining variances is crucial for property owners in Saskatchewan and beyond. Zoning regulations, governed primarily by the Act, dictate various aspects of land use, including permissible structures, density of development, and permitted land uses. Failing to adhere to these regulations can result in significant consequences for property owners.

Municipalities can optimize their variance assessment procedures by integrating precise criteria into zoning bylaws, instituting transparent review procedures, and actively engaging the public. By embracing these measures, municipalities can strike a harmonious balance between accommodating the evolving needs of land use and safeguarding community interests and values.

It is crucial for municipalities to develop a variance assessment framework that is cognizant of the relevant legal standards. This framework should offer a clear rationale and opinion regarding how the specific variance request aligns with considerations such as special privileges, the intent of applicable bylaws, and the potential impacts on neighboring properties. By incorporating explicit criteria into their zoning bylaws, adhering to the criteria outlined in the legal test, and offering transparent and compelling justifications for their decisions, municipalities can significantly enhance the likelihood that their determinations will withstand future appeals.

Each variance request is evaluated independently, based on its own merits. Legal precedents and specific tests outlined in the relevant legislation guide the decision-making process. It is imperative for property owners to navigate this process diligently, ensuring that their variance applications meet the necessary criteria to be granted. Ultimately, compliance with zoning regulations and thorough understanding of the variance process are essential for successful property development and management.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.