Ladysmith council has begun the process of reviving the Board of Variance, but more information is needed before council takes the step of adopting a new bylaw for the board.
Council considered a draft updated Board of Variance Bylaw during the Jan. 5 council meeting and ended up referring the matter back to staff to get more answers before proceeding after a number of questions came up.
The Local Government Act requires that any local government that has adopted a Zoning Bylaw must, by bylaw, establish a Board of Variance. Ladysmith’s first Board of Variance was established in 1962, and a new bylaw was adopted in 2000 that states a three-member board meets on the third Thursday of each month if required.
According to Sandy Bowden, the Town’s director of corporate services, Ladysmith’s Board of Variance has not met since the 1990s or early 2000s, as no applications have been submitted for consideration by the board.
Since 2000, the legislation pertaining to Boards of Variance has changed, and staff has recommended that council repeal the current Board of Variance bylaw and adopt a new, updated bylaw.
In Ladysmith, the Board of Variance is made up of three individuals appointed by council who have expertise in areas such as urban planning, architecture, landscape architecture, building design and construction, professional engineering, and law. A property owner applying for a minor variance has a choice whether to apply for a Development Variance Permit through council or apply to the Board of Variance. A decision made by the Board of Variance is final, and an applicant cannot appeal the board’s decision to council.
At the council meeting, Coun. Rob Hutchins raised a number of concerns about the wording of the bylaw.
The bylaw speaks to individuals applying for minor variances, but Hutchins noted that there is no definition for “minor variance.”
“I don’t see a definition of minor,” he said. “Who makes that determination? It’s my understanding from the legislation that individuals can choose to apply to council for a variance or apply to the board of variance, so what defines minor?”
City manager Ruth Malli explained there is no definition for “minor.”
“The legislation is provincial,” she said.
Bowden told council this is an issue that Boards of Variance throughout the province struggle with.
“There is no definition; it’s very subjective,” she said. “It’s all very individual, and it’s up to the board to determine that.”
Mayor Aaron Stone wondered if the Town could create its own definition in its bylaw, but Bowden said it isn’t recommended.
“The lawyers certainly don’t recommend putting any kind of definition in,” she said. “It’s very, very difficult to narrow it down, so I’m not really sure how you would define it.”
Hutchins wondered if the Town could provide information such as an example of a minor variance to help illustrate the meaning of “minor variance.”
“If it is subjective, how, in the best interest of the community, can we ensure that the term ‘minor’ is respected?” he asked.
Bowden suggested examples of what a minor variance is and additional information about the meaning of “minor” could be part of the policy or in the terms of reference for the Board of Variance, and Stone wondered if it would be possible to establish guidelines that would help define some of the terms, like the Town has done for its Zoning Bylaw and Development Permit Areas.
Hutchins also raised an issue with the wording that states that at least 10 days before the date set for a Board of Variance hearing, the secretary of the board must mail or deliver a notice of the hearing to the owners and occupants of the land that is adjacent to the land that is the subject of the application. He wondered what “adjacent” means, noting that, typically, when a Development Variance Permit application comes to council, all property owners within 60 metres of the applicant’s property are notified.
Bowden told council that her understanding is that it refers to abutting properties. Council expressed a wish to expand that to include more properties.
“If we were to say adjacent in our bylaw would include adjacent properties plus properties within 60 metres, it would give more opportunity to the public to provide input,” said Stone.
Coun. Duck Paterson noted that the government guidelines did say that definition could be altered, and he agreed with Hutchins that the notification area should be 60 metres, just like it is for Development Variance Permit applications.
Hutchins also questioned the fact that the board may close to the public all or part of a hearing, in accordance with Division 3 of Part 4 of the Community Charter. He had never come across this.
Bowden explained a Board of Variance must follow the same closed meeting rules from the Local Government Act that apply to all boards and advisory bodies. She has personally never seen a Board of Variance close a meeting.
Hutchins wondered if council could not allow the board to close meetings and wondered why the Town would be permissive.
“The legislation allows for it,” said Bowden. “I don’t think we can prohibit them from holding a closed session if there’s an extenuating circumstance under which it meets the criteria for closed meetings.”
Coun. Carol Henderson wondered why a whole section of the legislation wasn’t included in the draft bylaw, as she felt that if she was a property owner coming to the board of variance or council with a variance application, it would help guide her more.
Bowden explained the initial draft of the bylaw came from the Town’s lawyers, and they did not include all of the legislation so they could keep it concise. Other information that is missing from the bylaw could be included in a set of guidelines or policy document, she noted.
Staff will find answers to council’s concerns and bring the draft bylaw back to council at a future meeting.
