District of Highland Planner, Laura Beckett, Secretary
The duties of the Board are specified in Section 901 of the Local Government Act. There are four grounds for appeal each which involve different considerations. The precise wording of the Local Government Act is quoted here, and where there is a reference to another section, that wording is given as well. The four categories of appeal have been characterized as follows:
relaxation of zoning regulations;
relaxation of tree protection bylaws;
structural alteration where a non-conforming use is present; and
relaxation of subdivision servicing requirements
RELAXATION OF REGULATIONS FOR SITING, DIMENSIONS OR SIZE OF A BUILDINGS
Probably the most common type of appeal heard by Boards of Variance is a request for relaxation of certain siting regulations under s.901(1)(a):
A bylaw respecting the siting, dimensions or size of a building or structure,
or the siting of a manufactured home in a manufactured home park;
The variations requested under this section deal only with buildings and structures in terms of their size, dimensions and location on a parcel or the siting of a manufactured home in a manufactured home park. The Board cannot rule on policy issues of the local government such as an increase in density or a change in use.
PROTECTION OF TREES
s.901(1)(b) of the legislation provides that a Board can provide a variance from a provision of a tree protection bylaw as follows:
(b) a bylaw under Division 2 Part 22 other than
a bylaw under section 711, or
a bylaw that has an effect referred to in 714(1), if the Council has taken action under subsection (2) of that section to compensate or mitigate the hardship that is caused to the person;
The first of the two exceptions to a Board of Variance’s authority to provide a relaxation protects the right of a Council by bylaw to remove hazardous shrubs or trees where there is a concern about safety of people, damage to property or seriously inconvenience to the public. Examples could be diseased trees, trees blocking the view of stop signs or trees which block a pathway or sidewalk.
The second exception to a board’s authority is where a council has taken action to compensate or take mitigation actions to offset limiting the use of a property or the density of development on the property. In this case, the property owner cannot appeal to the Board of Variance. In this case the Council is acting as an appeal board and has made a judgment.
STRUCTURAL ALTERATION OR ADDITION WHERE NON-CONFORMING USES
s.901(1(c) of the legislation provides for an appeal from; as follows:
(c) the prohibition of a structural alteration or addition under section 911(5)
Section 911(5) specifies:
A structural alteration or addition, except one that is required by an enactment or permitted by a board of variance under section 901(1)(c), shall not, subject to subsection (9), be made in or to a building or structure while the non-conforming use is continued in all or any part of it.
Where the non-conformity relates only to siting, size, dimensions or parking requirements, s.911(9) allows the building or structure to be repaired, extended or altered without referral to the Board of Variance. However, Board of Variance approval is required, however, if this work would result in a further bylaw contravention. The Board would consider such a request in its normal manner under s.901(1)(c).
A structural change is not the same as a repair; rather, it is a modification to a floor, or roof, or bearing wall whether an internal or an outside wall. A new doorway in a bearing wall would be a structural change whereas new paneling or new shingles on a roof would not.
When structural alterations of a non-conforming building have been approved by a Board of Variance, these changes must also meet the requirements of statutes including regulations under statutes, for example, the Provincial Building Code, and any other bylaw provisions applicable at the time.
A non-conforming use is not confined only to that part of a building or structure occupied when the non-conformity was established, but can be extended throughout the whole building or structure. However, no structural alterations or additions may be made unless required by an enactment or permitted by the Board of Variance under s.901(1)(c):
RELAXATION OF SUBDIVISION SERVICING REQUIREMENTS IN AREA ZONED FOR INDUSTRIAL OR AGRICULTURE USE
Boards of Variance may approve the relaxation of servicing requirements for subdivisions. S.901(1)(d) of the legislation states as follows:
a subdivision servicing requirement under section 938(1)(c)in an area
zoned for agricultural or industrial use,
Section 938(1)(c) specifies that a council or board may:
require that within a subdivision, a water distribution system, a fire hydrant system, a sewage collection system, a sewage disposal system, a drainage collection system or a drainage disposal system be provided, located and constructed in accordance with the standards prescribed in the bylaw.
An appeal from this provision is only available where land is zoned for agricultural or industrial uses.