Introduction: One of the early questions in planning a development or property improvement is: Do I need a minor variance, or do I need a rezoning (zoning by-law amendment)? Using the correct approval route is crucial. Minor variances are quicker and simpler, but only suitable for small changes. Rezonings handle bigger changes but take longer and involve more scrutiny. This blog helps property owners and developers understand the difference between these two pathways and offers guidance on determining which one is appropriate for a given situation.
Defining the Difference:
– A Minor Variance is essentially a permission to deviate slightly from a specific requirement of the zoning by-law for a property. It keeps the existing zoning in place but grants an exception for a particular project. Examples: asking to reduce a setback by a small amount, or to slightly exceed lot coverage or height limits by a minor degree. The change must be “minor” in impact and uphold the general intent of the zoning and official plan. The approval is given by the Committee of Adjustment (not the full council), and no change is made to the zoning map or list of permitted uses.
– A Rezoning (Zoning By-law Amendment) is used for major changes to what is allowed on the property. It could change the zoning designation (for example from residential to commercial), add a new permitted use, or alter development standards in a significant way (like doubling the allowed height or density). Rezoning is a legislative change – a by-law amendment passed by council – and permanently alters the zoning by-law as it applies to the site (unless later changed again).
In short, scale and impact are the key factors. As one law firm succinctly put it: “The key difference between a minor variance and a zoning bylaw amendment is the scale of the change.” Minor variances are small, site-specific tweaks; rezonings rewrite the rules for the property in a bigger way.
Examples to Illustrate:
– If you want to build an addition that encroaches 2 feet into a required yard, that’s a classic minor variance scenario. You’re not changing the land use or overall building envelope drastically, just tweaking one number.
– If you want to change your single-family home into a medical clinic, that’s not minor – the use is completely different. You’d need a rezoning to permit the new use, as a variance cannot outright add a use category that’s prohibited.
– If you propose an apartment building in an area zoned for only 3-storey houses, and your building is 6 storeys, that’s likely beyond “minor”. Even if technically one could argue the numeric difference, the impact (twice as tall, much higher density) suggests a rezoning is required to fully assess and change the permitted standards.
– Borderline case: say the zoning allows 10m height and you want 11m. Is that minor? Often yes, a variance could handle a 1m height increase if impact is minimal (like a decorative roof element). But if you wanted 15m (50% more), most would consider rezoning.
Who Decides Minor vs Major? It’s not purely mathematical; “minor” is not strictly defined by a number. Committees and courts have said “minor” involves considerations of impact and policy conformity. Municipal staff can guide you. In pre-consultation, planners might say “This change is too large to be minor.” If an applicant tries a minor variance that is arguably not minor, the Committee of Adjustment can refuse it on that basis (or it might get approved but then appealed). As a rule of thumb: – Variances that significantly flout the Official Plan or fundamentally change the use are not minor.
– If multiple variances are required that collectively alter the project substantially, that might signal a rezoning is more appropriate (sometimes dubbed the “too many variances” problem).
For example, if you find yourself needing 5 different variances (height, coverage, parking, landscaping, etc.), maybe the project as designed doesn’t fit the zone at all – a rezoning could holistically address it rather than patchwork variances.
Process Comparison:
– Timeline: Minor variances are typically resolved in about 1 to 2 months (from application to committee decision, plus 20-day appeal period)[10]. Rezonings can take 3-6+ months, due to requirements for public meetings, multiple council readings, and possibly accompanying Official Plan Amendments.
– Public Involvement: Both involve public notice. Minor variances notify neighbors and have a public hearing, but it’s usually less formal and with fewer people. Rezonings require a public meeting before council; these can draw larger interest especially if it’s a big change affecting the neighborhood.
– Decision Body: Minor variance – Committee of Adjustment (usually citizen members appointed). Rezoning – Municipal Council (elected officials), often with prior review by a planning committee of council.
– Criteria: Minor variances have the “four tests” in the Planning Act – minor, desirable, maintains intent of OP and ZBL. Rezonings must conform to the Official Plan and be consistent with provincial policy, and are judged on broader “good planning” merits. In practical terms, a variance might focus on mitigating a specific impact (like privacy for an oversized deck), while a rezoning looks at the suitability of use, compatibility, servicing, etc.
– Conditions: Minor variances, if approved, can have conditions (e.g. build according to plans filed, or a time limit to exercise it). Rezonings can come with a requirement for a related site plan agreement or other provisions, but generally once the land is rezoned, the new permissions run with the land. Sometimes a rezoning is done with a “holding (H) symbol” that places conditions before the actual development can proceed (like “H” won’t be lifted until a traffic light is built, etc.). Minor variances don’t have that “holding” mechanism, but conditions can achieve similar limited scope.
Which Path to Choose – Some Guidelines:
1. Check the Zoning By-law Extent: How far is your proposal from what’s allowed? If only slightly over a standard, lean toward minor variance. If drastically over, rezoning. For instance, wanting a building 5% taller – variance. Wanting it 50% taller – likely rezoning.
2. Change of Use? Variances generally cannot change the fundamental use (Committee powers are limited; they can allow minor adjustments but not typically create new categories of use that by-law doesn’t permit). If you propose a use not listed at all in the zoning, rezoning (or a “use variance” which is rare and often treated essentially like a rezoning in impact).
3. Policy Alignment: If the Official Plan supports what you want, that’s a good sign. If not, a minor variance can’t fix an Official Plan conflict – you’d need an OPA. And if you need an OPA, you almost certainly will need a ZBLA (rezoning) as well; minor variance won’t be appropriate.
4. Scope of Impact: Minor variances typically are for issues that affect only your property and immediate neighbors (like a small encroachment). If the change has broader area implications (like adding 100 new residential units to a block), rezoning with more comprehensive review is expected.
5. Number of Reliefs Required: As mentioned, when numerous variances are needed, it indicates that the project is outside the current zoning fabric in multiple ways. A rezoning might be cleaner – it can rewrite the site-specific standards in one by-law rather than juggling many variances.
Risks of Choosing Wrongly: If you apply for a minor variance that is too aggressive, the Committee may refuse it, meaning wasted time (you could appeal to OLT, but OLT will also consider whether it truly is minor – they might agree with refusal or impose that it should’ve been rezoning). Conversely, pursuing a rezoning when a variance would do means you spent more time/money than necessary and possibly invited more scrutiny. Municipal staff sometimes advise to go the rezoning route for contentious or borderline cases because it provides a more robust process (with more public input, conditions, etc.) and is less likely to be overturned on appeal.
Cost Consideration: Minor variance applications have lower fees (often a few hundred dollars up to maybe $1-2k in cities), whereas rezoning applications are more expensive (several thousand dollars, reflective of more processing and public notice). Also, rezoning often requires hiring a planning consultant to prepare justification, whereas some homeowners do minor variances themselves (though for anything complex, a planner or designer’s help is wise even for variances). However, cost should not drive the decision if the scale clearly points one way; an improper minor variance attempt could end up costing more if it fails.
Case Study: Suppose you own a large lot in a neighborhood and want to split it and build a second house (severance). The zoning says minimum lot size 500 m²; your two proposed lots would each be 400 m². That’s a 20% shortfall. Is that minor? Many committees might consider a 20% deviation in lot size to be minor if the resulting lots still function and area context maybe has some similar lots. You might proceed with a minor variance (for lot size) alongside the consent application. Now imagine if your two lots were 250 m² each (half the required size) – that likely is too drastic; rezoning or a different plan would be needed because it changes density significantly and may not meet OP policy for that area.
Coordination with Severances: A side note – often people need both a consent and minor variances together (because splitting land may cause one or both lots to not meet zoning exactly). Committees often handle such combined applications in one meeting. If the deviations are large, sometimes planners might say “this severance effectively creates lots that are far below standard, it should go through rezoning”.
Concurrent OP or Site Plan Needs: If a rezoning is needed, often it triggers site plan control for the development after. Minor variances generally come after site plan designs are nearly done (to tweak a specific number). So in terms of project timeline, if you need both OPA, rezoning, and site plan, it could be a year or more of process. If just minor variance, you could be done in a couple months then straight to building permit or site plan if required.
Tips:
– Always consult the municipal planning department if uncertain. They’ll usually advise what process is appropriate (and they’ll be the ones writing reports or defending it, so their buy-in matters).
– Look at precedents in your area. If neighbors got minor variances for similar things, that’s encouraging. If a similar proposal went through rezoning, that’s instructive.
– If you think your case is minor, build a strong argument for the four tests to show it’s minor in impact. For instance, “While we request a 1.2m side yard instead of 1.8m, this is minor because the adjacent property has their driveway along that side and no windows facing us, so impact is negligible.” If you struggle to justify it’s minor or maintain intent, that’s a flag that a bigger change process is needed.
– Don’t try to bypass due process. Sometimes applicants hope a variance will slip in something major with less fanfare. But if it’s clearly major, committees or the OLT can throw it out, causing more delay. Transparency and following the correct channel will yield more durable results.
Conclusion: Deciding between a minor variance and a rezoning comes down to the magnitude and nature of your proposed change. Minor variances are like a surgical tweak to the rules – used for small compatibility issues and typically quicker to obtain[2]. Rezonings are a full rewrite of the rules for a site – necessary for substantial changes in use or density. By carefully assessing your project against zoning and policy, and consulting with planners, you can choose the right approval path. This saves time, resources, and increases the likelihood of a successful outcome: the approval you need, at the appropriate level of review, to confidently proceed with your development.