Board of Variance

Do I have a Hardship?

When you appeal to the Board of Variance for a relaxation the Board only wants to determine one thing… do you have a hardship? Generally “because I want it” is not a hardship. You must be able to prove that there is some feature of your property or specific zoning restriction that unfairly affects the development potential of your property. 

An example of a hardship would be a property that has an odd shape. When you apply the required setbacks to the odd shaped lot the Building Envelope (buildable area of the property) is far smaller than what would be permitted by the maximum Lot Coverage. In this case the hardship is that you cannot build a home that is a proportionate size, compared to what is permitted, due to the requirement of the setbacks. Specifically the setbacks were not intended to work with the odd lot shape and so it would be determined to be a hardship.

An example of not having a hardship would be a situation where your house has two stories and you would like to add a third storey. If you find that the maximum building height will not allow you to add a third storey, but you could add onto the side of  your home instead, it would not be a hardship if you could not have the third storey. Seeking a relaxation of the building height in this situation would most likely not be successful.

Can i get a relaxation without having drawings?

Unfortunately the answer is generally no. Most municipalities require you to develop design drawings for your project before you appeal for a relaxation. The design drawings need to be detailed enough for the Building Department to complete a full plan review and determine that the design complies with all zoning requirements except for the one that you would like to have relaxed.  

Usually a Board of Variance appeal is for new design and construction but occasionally there is a situation where something has been previously built without a permit and does not comply with the zoning bylaw. In this case you can appeal to the Board for a relaxation and state that demolishing what you have built would be a hardship. However, in this case you still need to provide full design drawings for what was built and the chances of success are much less. If you are granted a relaxation then you still need to follow through with full permit drawings and submit for a building permit.

how can i determine what relaxation to ask for?

If you have determined that you have a very good case of hardship and would like to appeal to the Board for a relaxation how do you know what to ask for? There are many factors that would contribute to the answer but generally you would ask for a reasonable relaxation based on what you could normally do if the hardship did not exist. Nothing supports your appeal better than a reasonable request for relaxation. Alternately,  nothing looks worse than asking for an unreasonable relaxation even if a hardship has been proven. 

What if my appeal is not successful?

Before you can submit for a Board of Variance appeal and relaxation you will need to develop design drawings of your project. In many cases you would be spending a significant amount of time and money to  develop the design based on the relaxation you would like to get. When you appeal to the Board there is always a chance that you will not get what you are seeking. If your application is not successful then you will have three options;

1. Don’t continue with your project. Cut your losses and understand that you knew the risk and now you are not willing to spend any more time and money to pursue what you wanted.
2. The Board may have indicated that they would have granted your relaxation if you had submitted a proposal that was a bit more reasonable. In this case you would revise the design, which still requires a relaxation, but adjust to suit the comments provided by the Board and then resubmit for a relaxation.
3. Do not resubmit to the Board for a relaxation. Instead, redesign your project to comply with all of the zoning requirements and not seek any relaxation even though it may not be exactly what you want. 

There is also a fourth option which has to do with existing non-conforming construction without a permit. If you are seeking a relaxation for construction done without a permit and you are not successful, unfortunately the only option is to deconstruct what was built and make it comply with the zoning.