Request for a minor variance, FoNTRA Position

January 1, 2012

in 2012, FoNTRA Advocacy Positions 2012-2016, Request for Minor Variance

Share

• FoNTRA strongly supports the 2005 decision of the Divisional Court in the Vincent v. Degasperis, 2005 CanLll 24263 (ON S.C.D.C.) which provided clarification to the “four test” requirements of Section 45(1) of the Planning Act when there is a request for a minor variance. The four tests for a minor variance are:
1) The variance is minor in nature: In 2005, the Divisional Court elaborated that this provision of the Planning Act had to be interpreted to mean that a variance can be more than a minor variance for two reasons, namely, that it is too large to be considered minor or that it is too important to be considered minor. The Court further clarified that the likely impact of a variance is often considered the only factor which determines whether or not it qualifies as minor but … such an approach incorrectly overlooks the first factor, size.
2) The variance is desirable for the appropriate development or the use of the land: The Divisional Court also clarified the second test to mean that the desirability of the variance sought for the appropriate development or use of the land, building or structure … includes a consideration of the many factors that can affect the broad public interest as it relates to the development or use.
3) The variance maintains the general intent and purpose of the Zoning By-law: The general purpose of zoning is to control the permitted uses and the desired physical character of an area as well as and to prevent the intrusion by uses, development patterns, and building forms deleterious to adjacent properties or to the community at large.
4) The variance maintains the general intent and purpose of the Official Plan: The general purpose of an Official Plan is to articulate a public policy framework, including goals and objectives, capable of guiding physical change and managing social, economic and environmental impacts. In Ontario, it sets the limits within which zoning regulations can be enacted.

Print Friendly, PDF & Email

Previous post:

Next post: