When zoning says no: rezoning, variance permits and the board of variance

Rezoning: the route that can change use and density

Section 479 of the Local Government Act gives a local government power, by bylaw, to divide land into zones and regulate within each zone the use of land, the density of that use, and the siting, size and dimensions of buildings. It can also set minimum and maximum sizes for new lots. A rezoning is an amendment to that bylaw for a specific lot or area, and council decides it.

Rezoning is the route for a change in the number of homes. Section 481.3 frames the small-scale unit minimums as a use and density of use, and the other two routes are barred from varying use or density. A project that needs more homes than the zone allows, or a building type the zone does not list, goes to rezoning. Richmond's bulletin gives one common case: development on more than one lot would typically need a rezoning to a townhouse or apartment zone.

Public hearings follow section 464. The default in subsection (1) is that a zoning bylaw needs a public hearing. Subsection (2) removes the requirement where an official community plan is in effect and the bylaw is consistent with it. Subsection (3) goes further: a city must not hold a hearing where the bylaw is consistent with the plan, its sole purpose is a development that is at least partly residential, and the residential part is at least half of the gross floor area. Subsection (4) bars hearings on bylaws passed only to meet the small-scale housing law. Burnaby and Port Moody both explained these changes to residents in 2024.

Inside a transit-oriented area, rezoning stays the route, with one change set by the province. Its FAQ says a city cannot deny a project on the ground that its density is too high, if the density is within the provincial limits for that tier. Our Journal post comparing rezoning with building under existing zoning covers the timing side of this choice.

Development variance permits: relaxing the numbers

Section 498 (1) lets a local government, on application by an owner, issue a development variance permit by resolution. The permit can vary provisions of the zoning bylaw and some other land use bylaws for the land it covers. Where the permit and the bylaw conflict, section 498 (3) says the permit wins.

Section 498 (2) sets the limits. A variance permit must not vary the use or density of land from what the bylaw specifies. It must not vary the application of a zoning bylaw on residential rental tenure, and it must not vary a flood plain specification. Everything else in the zoning bylaw is open to a variance request, which in practice means rules such as setbacks, height and other building dimensions.

Section 498.1 lets council delegate the power to a staff member for a minor variance to the siting, size and dimensions of buildings, off-street parking, signs or screening and landscaping. The delegating bylaw must set criteria for what counts as minor and guidelines the delegate must consider. An owner who disagrees with a delegate's decision is entitled to have council reconsider it.

Neighbours are told when council decides. Section 499 requires notice before council passes a resolution to issue a variance permit. Subsection (1.1) says that notice requirement does not apply when a delegate issues the permit under section 498.1.

The board of variance: hardship, minor, final

Section 536 requires every local government with a zoning bylaw to set up a board of variance. Its members cannot be council members, advisory planning commission members, or city staff. They serve 3-year terms without pay. Section 537 sets the size: 3 members where the municipality's population is 25,000 or less, and 5 where it is more. Vancouver's board works under section 573 of the Vancouver Charter.

Under section 540, a person may apply to the board where complying with a bylaw on the siting, size or dimensions of a building would cause them hardship. The board must notify the owners and tenants of the land and of adjacent land under section 541. Under section 542 (1), it may order a minor variance if it has heard the applicant and the people notified, finds that compliance would cause undue hardship, and is of the opinion that the variance does not do any of six listed things. These include resulting in inappropriate development of the site, harming the natural environment, varying permitted uses and densities, and defeating the intent of the bylaw. The effect on the use and enjoyment of adjacent land is also on the list.

Section 542 (2) lists orders the board must not make. It must not conflict with a covenant registered under section 219 of the Land Title Act. It must not deal with a matter covered by a land use permit, land use contract or phased development agreement, or with a flood plain specification. It must not apply to property that needs a heritage alteration authorization under Part 15, has a heritage revitalization agreement in effect, or is protected heritage property in a heritage conservation area.

Time limits apply. Under section 542 (3), if construction has not started within 2 years after the order, or within another period the order sets, the permission ends and the bylaw applies again. And section 542 (4) says the board's decision is final.

Choosing the route

Start from what needs to change. If the answer is the number of homes or the type of building, the route is rezoning, because the other two cannot vary use or density. If the answer is a setback, a height or another dimension, a development variance permit is the usual route. If the rule causes undue hardship on a minor point of siting, size or dimensions, the board of variance is a third option, with a final decision and no appeal to council.

Check the title before choosing. A covenant registered under section 219 cannot be overridden by the board of variance. If the covenant is in favour of the city, removing or changing it is a discussion with the city, separate from any variance. If it is a building scheme, Port Moody's page notes that the city is not a party to it at all.

The table below sets the three routes side by side. Before design work starts, write down which route each departure from the zone would need, because a design that depends on a rezoning carries a different schedule and risk from one that needs a single variance.