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Introduction
Boards of Variance are intended to provide
a measure of flexibility and discretion in the application
of by-laws and other regulations related to land use, specifically
where zoning by-laws have produced ‘legal non-conforming’ status,
or otherwise created hardship where land, and its use and
development, is concerned.
Composition
Currently the Saanich Board of Variance is
composed of five members who are appointed by Saanich Council,
pursuant to the provisions of the Local Government Act.
Mandate
The Saanich by-law establishing the Board
of Variance requires the Board to hear and determine any
application with respect to matters mentioned in the Local
Government Act.
The Act empowers Boards to conduct hearings and when justified
order that a minor variance be permitted where the applicant
alleges that compliance with a by-law would cause hardship
with respect to the siting, dimensions, or size of a building
or structure, or the siting of a manufactured home in a
manufactured home park. The Board can also allow minor
variances under the Tree Preservation Bylaw.
‘Structure’ includes, but is not limited to,
such things as garages, carports, decks, balconies, workshops,
sheds, barns, outbuildings and free-standing signs.
The Board may also allow a structural alteration or addition
to a building or structure housing a legal non-conforming
use, or which would otherwise be prohibited under subdivision
servicing requirements. In addition, the Board may allow
a minor variance from the requirements of the Subdivision
Servicing Bylaw for properties zoned industrial or agricultural
where compliance with the Bylaw would cause undue hardship.
Procedures
Legally Required
Certain Board procedures are set
out in the Local Government Act as follows:
- The Board is required to give notice
to and to hear the applicant, and any owners and tenants
adjacent to land that is subject to the application.
- It is further required to determine
that undue hardship would be caused to the applicant
if the bylaw is complied with; and is of the opinion
that the variance or exception does not:
- result in inappropriate development
of the site;
- adversely affect the natural
environment;
- substantially affect the use
and enjoyment of adjacent land;
- vary permitted uses and densities
under the applicable bylaw; or
- defeat the intent of the bylaw.
Terms such as ‘inappropriate’, ‘minor variance’, ‘hardship’ or ‘undue
hardship’ ‘substantially’ (as in ‘substantially
affect the use and enjoyment of adjacent land’) are
not further defined and these interpretations are flexible.
A variance of, say, 4 metres may be minor in one case, whereas
a variance of 0.5 m might be excessive in another. The same
argument applies to the other terms; for example, what is
appropriate on one property - say a stable - may be entirely
inappropriate on another.
The Board does not set precedents; each application is judged
on its own merits, and it is not open to applicants to claim
that a neighbour was allowed a variance and that therefore
they are entitled to a variance as well, although applicants
can, and do, refer to other decisions.
A decision of the Board is final, except under limited, defined
circumstances.
Other Procedures
The Board of Variance meets once a month in the evening of
the second Wednesday. All applications must be received 15
calendar days prior to the meeting, and a fee paid, which
is established by Council. Occasionally, the Board may hold
a special meeting with proper notification to applicants and
neighbours.
Applications are heard in the order they are received by
the Clerk’s Office. If the meeting continues past 9:30
p.m., the Board may decide to adjourn any unheard applications
to the following Wednesday at 7:00 p.m. All meetings of the
Board are open to the public except under limited circumstances.
(amendment July/03)
All members of the Board visit the sites of all applications;
the members may inspect the site at any reasonable daylight
time from the morning of the Thursday preceding the hearing
to the day of the hearing.
They cannot make advance appointments to view a site. It
is up to applicants to ensure that the site is safely accessible
during daylight hours, and that the required variance is clearly
marked on the property. Applications for sites which are either
inaccessible or where the markings are inadequate or non-existent
will be tabled to a later hearing.
It is recommended that applicants discuss their proposal
with adjacent neighbours before the hearing in order to address
or alleviate concerns that may affect the disposition of their
application. In addition to the application itself, an application
checklist must be completed, and all the sections complied
with.
Plans
In
considering an application, the Board has to consider
the criteria (see
Procedures Legally Required). This means
that the Board usually needs more detail than simply
that of the variance itself. For example, if the
variance requested is to erect a structure closer
to a lot line than the zoning allows, the Board (and
the neighbours) want assurance that it will not unduly
block sunlight or views, etc. Therefore, the Board
may wish to see elevations even though a height variance
may not be required. Similar situations arise all
the time.
The Board recognizes that applicants do not always want the
expense of full architectural blueprints if it is possible
a variance may be rejected. While such blueprints are often
necessary, and always desirable, a scale drawing may be sufficient,
provided the dimensions are accurately marked. What is not
sufficient is a rough sketch, with only partial measurements
and not drawn to scale.
With this in mind, the applicant is required to include with
the application the following documentation:
- A site plan on a scale
of at least 1 to 200 in a reproducible format (maximum
size 11 x 17"), including:
- the northpoint and scale
- dimensions and area of the
site
- size, shape and siting (including
setbacks) of all existing and proposed buildings
and additions, with dimensions
- existing trees
- Floor plans on a scale
of at least 1 to 100 in a reproducible format (maximum
size 11 x 17") with dimensions and use of rooms,
including all outside balconies and decks, and whether
enclosed or not; and proposed additions.
- Elevations at the same
scale as floor plans, showing front, rear and side
elevations, with decks and balconies, and proposed
additions.
- Applicants may bring larger
scale plans, elevations and/or models to
the hearing, and are encouraged to do so.
- Calculations of the allowable
floor space ratio in non-basement areas appropriate
to the zoning (where required for the application).
- It is the applicant's responsibility
to submit the required relevant information
in a clear and concise manner so that the Board can
make
an informed decision.
- Where height variances
are requested, a Letter of Assurance from a registered
BC Land Surveyor is required. Elevations must be
provided to scale, showing the relationship to any
adjacent properties, natural grade, and roof sections,
together with some visual/physical evidence on site
that will indicate the anticipated height.
Hearings
Hearings are informal; applicants
and interested persons are required to give their
names and addresses to the Secretary, who then reads
the details of the application.
- Applicants may be represented by
an agent or named person authorized by them.
- The Chair asks the applicant (or
representative) if they have any material evidence
they wish to add that is not in their application.
- The Chair then gives members of
the Board the opportunity to ask questions.
- The Chair then asks any interested
persons to come forward to make their case, for or
against.
- The applicant is given the opportunity
to respond.
- The Board may ask further questions.
- All questions and statements are
made through, and to, the Chair.
- The application is then set on one
side until all applications have been heard.
- After all the applications have
been heard the Board then considers each in turn.
At this stage no further interventions from applicants
or interested persons are allowed, and the Board
renders its decision, which is by a simple majority
vote of the members. Should a vote be equally divided
then the application fails.
- The Board may allow or disallow
the application in part or in its entirety.
- It may attach conditions or restrictions
to the granting of the application.
- The Board may modify an application,
or recommend that modifications be made, and may
table an application until the next (or later) meeting
of the Board to allow time for such modifications
to be considered by the applicant.
- Applicants may also request that
a hearing be tabled, which the Board may grant.
- If the applicant or a representative
does not appear, the Board may table the application.
- If, in the Board's opinion, insufficient
information is provided the application may be tabled.
- No additional fees are payable if
an application is tabled.
- The same application will not be
reheard by the Board, but it may reconsider a revised
application if different grounds are established,
or if the proposal is amended.
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