City of Langford

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Board of Variance

Function

Where a council or regional district board has enacted a zoning bylaw, or a regional district board has adopted a rural land use bylaw, Section 899 of the Local Government Act requires it to establish a Board of Variance. The Board of Variance is an avenue for appeal on the interpretation and the strict application of certain local government provisions and regulations in specific circumstances defined in the legislation. It functions separately from the local government that established it and has its own authority under the Act.

The Board of Variance is not an appeal board for local government policy decisions, and it cannot replace decisions of elected officials. The Board is confined to considering variances that will not impact adversely upon a policy decision or change the intent of a bylaw adopted by a municipal council or regional district board. Variances can be granted respecting bylaw requirements for the siting, dimensions, or size of buildings that are designed to deal with the most common circumstances and to be applied universally to these situations. In some special cases general regulations or ones prohibiting structural changes in a non-conforming building or requiring services upon subdivision may result in an undue hardship if applied to a particular site. A person may appeal to the Board for a variance only if the application of these general regulations to his or her particular site would impose such a hardship. The Board may also decide on the correctness of a certain type of decision made by a building inspector.

Appointments

In the City of Langford, the Board of Variance consists of five persons. The members are appointed by City Council for a three year term.

The members of the Board of Variance cannot be members of an advisory planning commission, elected officials or employees of the local government that appoints them. This is because their responsibilities include both assessing the correctness of an interpretation of the amount of damage given by the local government building inspector and modifying the strict application of local government regulations.

Categories of Appeal to Boards of Variance

The duties of the Board are specified in Section 901 of the Local Government Act. There are five grounds for appeal each of which involve different considerations. The precise wording of the Act is quoted here, and where there is a reference to another section, that wording is given as well. The five categories of appeal have been characterised as follows:

  1. relaxation of zoning regulations;
  2. extension of non-conforming uses;
  3. relaxation of servicing requirements;
  4. reconstruction of a non- conforming building; and
  5. relaxation of tree protection requirements.

Qualifiers

The five categories of appeal in Section 901(2) are all based on the demonstration of "undue hardship" and are limited by the following:

"901(2) - On an application under subsection (1), the Board of Variance may order that a minor variance be permitted from the requirements of the bylaw, or that the applicant be exempted from section 911(5), if the Board of Variance,

(a) has heard the applicant and any person notified under subsection (4),

(b) finds that undue hardship would be caused to the applicant if the bylaw or section 911(5) is complied with, and,

(c) is of the opinion that the variance or exemption does not (i) result in inappropriate development of the site, (i.1) adversely affect the natural environment

  (ii) substantially affect the use and enjoyment of adjacent land

  (iii) vary permitted uses and densities under the applicable bylaw, or

  (iv) defeat the intent of the bylaw."

This section requires that a Board hear an applicant and the owners and occupiers of the subject and adjacent properties. The wording of the legislation makes it clear that the decision as to whether undue hardship is demonstrated is the Board's to make. It must be satisfied a variation is justified by the presence of undue hardship. The scope of the variation, however, is limited by the word "minor" and by (a) to (c) of Section 901(2). The Board must be satisfied that all the criteria listed have been met. Each is explored below:

  1. "Hardship" - The application of requirements of the bylaw must create a hardship. Increased cost or loss of an amenity    is a hardship but is unlikely to be a sufficient reason on its own.
  2. "Undue" - The hardship created must be undue. The intent of this term is to limit the concerns of the Board to types of hardship that result from aspects of the site as opposed to those that are personal to or generated by the owner. If a characteristic of a site is that bedrock protruding in the site's building area makes compliance with the siting provisions of a bylaw difficult and unreasonable, the hardship created, through no fault of the property owner himself, is undue. If other properties in the zone do not have the protruding rock, they would not be subject to the same degree of hardship. The difficulty in determining undue hardship revolves around whether the hardship would have been a hardship for everyone. If compliance with the general setback regulations is difficult or expensive, but that is the case for all properties within that zone, then one could not argue that there is undue hardship. If a circumstance penalizes one or only a few owners, it would be unfair and unduly onerous.
  3. "Minor variance" - This terminology limits the scope of the variances the Board may allow. Relaxation of a requirement of a bylaw cannot be a substantial variation.

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